Does An Employee Have the Right to Recover the Difference Between the Fixed Rate of Wages and the Amount Paid to Him ?
Any employee upon any public improvement, except an employee to whom restitution is made pursuant to division (C) of section 4115.13, who is paid less than the fixed rate of wages applicable thereto may recover from such person, firm, corporation, or public authority that constructs a public improvement with its own forces the difference between the fixed rate of wages and the amount paid to the employee and in addition thereto a sum equal to twenty-five per cent of that difference.
Where the employee prevails in suit, the employer shall pay the costs and reasonable attorney's fees allowed by the court."
Accordingly, a strict construction of the statute would make it appear as though the plaintiff does not have a cause of action so long as the employer has paid restitution pursuant to R.C. 4115.13(C).
This construction, though, must fit into the overall purpose of the statute and not violate its intent.
The court must consider what the consequences of a particular construction are for all parties. R.C. 1.49(E). If the court accepted the defendant's interpretation, an employee would then be restricted to thirty days in which to seek enforcement of the administrator's findings.
The statute explicitly allows the employee sixty days in which to file suit for recovery of any deficiency. R.C. 4115.10(A).
To disallow an employee to file a lawsuit within the full sixty days as permitted by statute would contravene the intent of the statute and also severely impact upon plaintiffs' access to courts as provided for in Section 16, Article I of the Ohio Constitution.