Honorable William A. Oberle, Jr.
House of Representatives
Legislative Hall
411 Legislative Avenue
Dover, DE 19901

Dear Representative Oberle:

You have asked "[d]oes 19 Del. C. § 1319, allowing for the public employer to deduct fair share fees, supercede any and all prior statutes that prohibit any deductions from an employee's paycheck without prior written authorization." In your request, you refer to 19 Del. C. § 1107 which you correctly describe as having "a general prohibition against the deduction from wages without [an employee's] written authorization . . . ." For the reasons stated below, we conclude that 19 Del. C. § 1319 concerns a different group of employers i.e. public employers, and, therefore, does not supercede or otherwise conflict with 19 Del. C. § 1107 prohibiting unauthorized deductions from a private employee's paycheck.

Title 19 Del. C. § 1319, enacted on July 2, 2002, states in part:

(a) Where the provisions of a collective bargaining agreement so provide, a public employer shall deduct a fair share fee from each nonmember's salary or wages and promptly transmit this amount to the exclusive representative.

Section 1319(a) clearly authorizes a public employer to deduct a fair share fee from an employee's paycheck without requiring any prior written authorization from the employee. The section makes no reference to private employers, however, and therefore, is inapplicable with respect to any deductions from employees paychecks made by them.

Your request references a "prior statute," 19 Del. C. § 1107, that prohibits an employer from withholding wages except in three circumstances. It states as follows:

§ 1107. Withholding of wages.

(1) The employer is required or empowered to do so by state of federal law; or

(2) The deductions are for medical, surgical or hospital care or service, without financial benefit to the employer, and are openly, clearly and in due course recorded in the employers' books; or

(3) The employer has a signed authorization by the employee for deductions for a lawful purpose accruing to the benefit of the employee, . . . .

As you note in your request, however, the provisions of §1107 do not apply to public employers because, as used in that section, the word "employer" excludes "the United States Government, the State of Delaware or any political subdivision thereof." See 19 Del. C. § 1101(a)(3). As a result, § 1107 neither requires nor prohibits a public employer from withholding wages. The later statute, 19 Del. C. § 1319, applying as it does only to public employers, is unaffected by the provisions of § 1107 which applies to private employers.

Although both statutory sections concern the withholding of wages, since § 1319(a) applies to public employers and § 1107 affects private employers, the statutes are not in conflict and the provisions of both have full force and effect.

If you have any questions, please do not hesitate to contact us.

Very truly yours,

James J. Hanley
Deputy Attorney General

Keith R. Brady
Assistant State Solicitor

APPROVED:
___________________

Malcolm S. Cobin
State Solicitor

Phil Johnson
Opinion Coordinator