6.07.040 Enforcement.
A. Any person or class of persons that suffers financial injury as a result of a violation of this chapter or is the subject of prohibited retaliation under this chapter, or any other individual or entity acting on their behalf, may bring a civil action in a court of competent jurisdiction against the employer or other person violating this chapter and, upon prevailing, shall be awarded reasonable attorney fees and costs and such legal or equitable relief as may be appropriate to remedy the violation including, without limitation, the payment of any unpaid wages plus interest due to the person and liquidated damages in an additional amount of up to twice the unpaid wages; compensatory damages; and a penalty payable to any aggrieved party of up to $5,000 if the aggrieved party was subject to prohibited retaliation. For the purposes of this section, an “aggrieved party” means an employee or other person who suffers tangible or intangible harm due to an employer or other person’s violation of this chapter. Interest shall accrue from the date the unpaid wages were first due at the higher of 12 percent per annum or the maximum rate permitted under RCW 19.52.020.
B. For purposes of determining membership within a class of persons entitled to bring an action under this section, two or more employees are similarly situated if they:
1. Are or were employed by the same employer or employers, whether concurrently or otherwise, at some point during the applicable statute of limitations period;
2. Allege one or more violations that raise similar questions as to liability; and
3. Seek similar forms of relief.
4. Employees shall not be considered dissimilar solely because their claims seek damages that differ in amount, or their job titles or other means of classifying employees differ in ways that are unrelated to their claims.
C. An employer bears the burden of proof that the individual is, as a matter of economic reality, in business for oneself rather than dependent upon the alleged employer.
D. Each employer shall retain records as required by RCW 49.46.070, as well as such information as the city may require to confirm compliance with this chapter. If an employer fails to retain such records, there shall be a presumption, rebuttable by clear and convincing evidence, that the employer violated this chapter for the periods and for each employee for whom records were not retained.
E. Employers shall permit authorized city representatives access to work sites and relevant records for the purpose of monitoring compliance with this chapter and investigating complaints of noncompliance, including production for inspection and copying of employment records. The city may designate representatives, including city contractors and representatives of unions or worker advocacy organizations, to access the work site and relevant records.
F. Complaints that any provision of this chapter has been violated may also be presented to the city attorney, who is hereby authorized to investigate and, if they deem appropriate, initiate legal or other action to remedy any violation of this chapter.
G. The city has the authority to issue administrative citations, notices of civil infraction, and to order injunctive relief including reinstatement, restitution, payment of back wages, or other forms of relief.
H. In addition to any other remedy provided by this chapter or allowed by law, any employer or their agent violating the requirement under this chapter to pay at least the city minimum wage to its employees shall have committed a civil infraction subject to the following penalties not to exceed the following amounts:
1. For the first offense, a fine of not more than $500.00 per underpaid employee per pay period;
2. For the second offense, a fine of not more than $750.00 per underpaid employee per pay period; and
3. For the third and subsequent offenses, a fine of not more than $1,000 per underpaid employee per pay period.
I. When determining the penalty amount for the civil infraction, the city shall take into account the specific details of the violation, such as the amount of underpaid wages, the duration of the underpayment, the number of employees affected, the presence of any retaliation or adverse action, and whether financial injuries have yet been remedied.
J. The city may, in the exercise of its authority and performance of its functions and services, agree by contract or otherwise to participate jointly or in cooperation with Washington State, Whatcom County, or any city, town, or other incorporated place, or subdivision thereof, or engage outside counsel, to enforce this chapter.
K. The remedies and penalties provided under this chapter are cumulative and are not intended to be exclusive of any other available remedies or penalties, including existing remedies for enforcement of Bellingham Municipal Code chapters.
L. The statute of limitations for any enforcement action shall be five years. [Initiative No. 2023-01, § 4, approved by voters at the 11/07/23 election, certified 11/28/23].