CAFE v. S.C. DEPT. OF LABOR, LICENSING

ANDERSON, Judge:

Carolina Alliance for Fair Employment (CAFE) and Rachel Stern brought this declaratory judgment action against South Carolina Department of Labor, Licensing, and Regulation (the Department) and Adecco Temporary Services (Adecco, f/k/a Adia Temporary Services) (Adecco) seeking an order clarifying whether the notice requirements of S.C.Code Ann § 41-10-30A (Supp.1998)1 are met by a minimum wage notification. The Circuit Court found a minimum wage notification sufficient, and therefore, granted the Department's summary judgment motion. CAFE and Stern appeal. We affirm.2

FACTS/PROCEDURAL BACKGROUND

CAFE is a statewide group of thirteen chapters consisting of over 1,000 dues paying families. In November 1994, CAFE sponsored a "Temp School." CAFE hired nineteen people for one week to obtain information from them about their experiences with temporary employment. Despite their complaints, none of the participants filed an official grievance.

A "temp testing project" was conducted in the Greenville area in 1995-1996 to further investigate and document temporary agency practices. Individuals, referred to as "testers," were hired by CAFE on a contract basis to register at "targeted temp agencies," go out on assignments, work at least one day, and submit written reports to CAFE. A second "temp testing project" was later conducted state-wide. Stern was one of the testers.

In January 1997, CAFE assisted its "testers" in filing complaints with the Department alleging the temporary agencies failed to provide the written wage notice required by S.C.Code Ann. § 41-10-30(A) (Supp.1998). Stern was registered with Adecco, and agreed to work for $6.00 per hour. She wrote the Department on January 23, 1997:

She followed up with a phone call on February 10, 1997. On February 20, 1997, the Department investigated Adecco. Adecco posted the following notice:

This verbiage is virtually identical to that suggested by the Department for temporary agencies. The Department found that Adecco had complied with the statute. Accordingly, it did not issue Adecco a warning letter.

Thereafter, Charles Taylor, CAFE's executive director, had a "series of communications" with the Department concerning the interpretation that the minimum wage poster satisfied the wage notification requirement. This suit requested:

Adecco answered admitting Stern was an employee.5 Adecco later filed a motion to dismiss. The Trial Court denied that motion finding a justiciable controversy between Adecco and Stern. A portion of that order addressed the standing of CAFE and Stern to bring this action. The Trial Court explained:

(Emphasis added). At some point, however, Adecco was dismissed from this suit.

The remaining parties filed cross-motions for summary judgment. The Trial Court, granting the Department's motion, stated:

The Trial Court did not address either CAFE's or Stern's standing to maintain this suit. Following CAFE and Stern's motion to reconsider, the Trial Court added: "[T]his Court concludes as a matter of law that the minimum wage notification approved by the Department of Labor satisfies § 41-10-30(A)."

ISSUES

STANDARD OF REVIEW

"Summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Tupper v. Dorchester County, 326 S.C. 318, 487 S.E.2d 187 (1997). All ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the moving party. Baugus v. Wessinger, 303 S.C. 412, 401 S.E.2d 169 (1991). "Summary judgment is proper where plain, palpable, and indisputable facts exist on which reasonable minds cannot differ." Rothrock v. Copeland, 305 S.C. 402, 405, 409 S.E.2d 366, 368 (1991). It is not appropriate where further inquiry into the facts of the case is desirable to clarify the application of the law. Tupper, supra.

Even when there is no dispute as to evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied. Gilliland v. Elmwood Properties, 301 S.C. 295, 391 S.E.2d 577 (1990). Because it is a drastic remedy, summary judgment should be cautiously invoked so no person will be improperly deprived of a trial of the disputed factual issues. Etheredge v. Richland Sch. Dist. I, 330 S.C. 447, 499 S.E.2d 238 (Ct.App.1998).

The party seeking summary judgment has the initial burden of demonstrating the absence of a genuine issue of material fact. Baughman v. American Tel. & Tel. Co., 306 S.C. 101, 410 S.E.2d 537 (1991). Once the party moving for summary judgment meets this initial burden, the non-moving party cannot simply rest on the mere allegations or denials contained in the pleadings. Rule 56(e), SCRCP. Rather, the non-moving party must come forward with specific facts showing there is a genuine issue for trial. Rule 56(e), SCRCP.

The plain language of Rule 56(c), SCRCP, mandates the entry of summary judgment, after adequate time for discovery against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case and on which that party will bear the burden of proof at trial. Baughman, supra. A complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Id.

LAW/ANALYSIS

I. STANDING

"The existence of an actual controversy is essential to jurisdiction to render a declaratory judgment." South Carolina Electric & Gas Co. v. South Carolina Public Service Authority, 215 S.C. 193, 215, 54 S.E.2d 777, 787 (1949). While this question has not been raised on appeal, we do so sua sponte, because the parties cannot by consent or agreement confer jurisdiction on the court to render a declaratory judgment in the absence of an actual justiciable controversy. Power v. McNair, 255 S.C. 150, 177 S.E.2d 551 (1970) (citations omitted).

A. STERN

"[A] private person may not invoke the judicial power to determine the validity of executive or legislative action unless he has sustained, or is in immediate danger of sustaining, prejudice therefrom." Baird v. Charleston County, 333 S.C. 519, 530, 511 S.E.2d 69, 75 (1999) (citing Blandon v. Coleman, 285 S.C. 472, 330 S.E.2d 298 (1985) and Myers v. Patterson, 315 S.C. 248, 433 S.E.2d 841 (1993)). See also Florence Morning News v. Building Comm'n, 265 S.C. 389, 218 S.E.2d 881 (1975). Such imminent prejudice must be of a personal nature to the party laying claim to standing and not merely of general interest common to all members of the public. Ex Parte Levitt, 302 U.S. 633, 58 S.Ct. 1, 82 L.Ed. 493 (1937); Baird, supra; Citizens of Lee County, Inc. v. Lee County, 308 S.C. 23, 416 S.E.2d 641 (1992); Energy Research Foundation v. Waddell, 295 S.C. 100, 102, 367 S.E.2d 419, 420 (1988); Toussaint v. State Bd. of Medical Examiners, 285 S.C. 266, 329 S.E.2d 433 (1985); Florence Morning News, supra.

In the complaint, Stern avers:

However, Stern was guaranteed $4.25 per hour in the posted written notice, but received $6.00 per hour. In other words, she complains she was not informed by Adecco, who is no longer involved in this suit, that she would make more money than she was guaranteed. Stern has failed to demonstrate any injury to her based on the Department's interpretation of the statute, despite her conclusory allegations. Simply put, Stern was not prejudiced, and has not sustained the requisite injury for maintaining this law suit.

B. CAFE

An organization has standing only if it alleges that it or its members will suffer an individualized injury; a mere interest in a problem is not enough. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). See also Energy Research Foundation v. Waddell, 295 S.C. 100, 367 S.E.2d 419 (1988) (finding the organization alleged no individualized injury, and therefore, had no standing). The complaint declares:

Nowhere does CAFE allege any individualized harm or injury to itself or any of its members. Therefore, it does not have standing to bring this action.

C. DECLARATORY JUDGMENT

Stern and CAFE seek a declaration of the meaning of S.C.Code Ann. § 41-10-30(A) (Supp.1998). The Declaratory Judgments Act provides:

S.C.Code Ann. § 15-53-30 (1977).

"In declaratory judgment actions `[t]he interest of the parties ... to the subject matter of the controversy must be more than merely general. It must be a substantial, direct, and legally protected present interest in the relief sought.'" Quinn v. City of Columbia, 303 S.C. 405, 407-08, 401 S.E.2d 165, 167 (1991) (footnote omitted) (citation omitted) (emphasis added).

Stern fails to allege, and fails to demonstrate, how her rights have been impacted by the notice posted by Adecco and the interpretation taken by the Department. CAFE and Stern both maintain they are protecting others who may be "potentially" impacted. However, this is too hypothetical to warrant declaratory relief.

Pee Dee Elec. Co-op., Inc. v. Carolina Power and Light Co., 279 S.C. 64, 66, 301 S.E.2d 761, 762 (1983).

The notice posted by Adecco and the interpretation by the Department did not work an injustice on Stern. The claims by Stern and CAFE on behalf of potentially affected future temporary employees do not give rise to standing for either CAFE or Stern.

D. PUBLIC IMPORTANCE

One exception to the requirement a party have standing is if the issue is of such public importance that guidance from this Court will prohibit future litigation.

Baird v. Charleston County, 333 S.C. 519, 531, 511 S.E.2d 69, 75 (1999).

In the economy today, a greater number of businesses are relying on temporary employees. The duties of these employees run the gamut of possibilities. Some are hired for only a few days to handle purely clerical matters. Others are hired for extended periods in positions with managerial responsibilities. The wages of these employees vary as much as the nature of their assignments. One thing is certain, temporary agencies are proliferating throughout the state and will continue to do so as long as businesses focus on outsourcing and cutting costs. Temporary agencies have numerous applicants and assignments, and to leave them in a constant state of flux or confusion about the wage notification requirements of S.C.Code Ann. § 41-10-30(A) is unnecessary.

We agree to address the merits of Stern's claim to edify the Department as well as temporary agencies statewide.

II. S.C.CODE ANN. § 41-10-30(A) (SUPP.1998)

CAFE and Stern profess the Department erroneously interpreted the statute. They assert the exact amount of the employee's wages must be disclosed. We disagree.

Our primary function in interpreting a statute is to ascertain the intent of the legislature. Multi-Cinema, Ltd. v. South Carolina Tax Commission, 292 S.C. 411, 357 S.E.2d 6 (1987). That intent must be gleaned from the language chosen by the legislature. See Glover by Cauthen v. Suitt Constr. Co., 318 S.C. 465, 458 S.E.2d 535 (1995); Holley v. Mount Vernon Mills, Inc., 312 S.C. 320, 440 S.E.2d 373 (1994); Kiriakides v. United Artists Communications, Inc., 312 S.C. 271, 440 S.E.2d 364 (1994); Utilities Constr. Co. v. Wilson, 321 S.C. 244, 468 S.E.2d 1 (Ct.App.1996); Dumas v. InfoSafe Corp., 320 S.C. 188, 463 S.E.2d 641 (Ct.App.1995).

"Words used in a statute should be taken in their ordinary and popular significance unless there is something in the statute requiring a different interpretation." Santee Cooper Resort v. S.C. Public Serv. Comm., 298 S.C. 179, 184, 379 S.E.2d 119, 122 (1989) (citing Hatchett v. Nationwide Mutual Insurance Co., 244 S.C. 425, 137 S.E.2d 608 (1964)). Where the legislature elects not to define the term in the statute, the court will interpret the term in accord with its usual and customary meaning. Ex Parte Adoptive Parents v. Biological Parents, 315 S.C. 535, 446 S.E.2d 404 (1994). The court must then apply that term according to its literal meaning. Paschal v. State Election Comm'n, supra; Carolina Power & Light Co. v. City of Bennettsville, 314 S.C. 137, 442 S.E.2d 177 (1994); Holley v. Mount Vernon Mills, Inc., 312 S.C. 320, 440 S.E.2d 373 (1994). The court may not resort to subtle or forced construction to limit or expand a statute's operation. Rowe v. Hyatt, 321 S.C. 366, 468 S.E.2d 649 (1996); Paschal v. State Election Comm'n, 317 S.C. 434, 454 S.E.2d 890 (1995); Anderson v. State Farm Mut. Auto. Ins. Co., 314 S.C. 140, 442 S.E.2d 179 (1994). Finally, a statute must receive a practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of the lawmakers. Caughman v. Columbia Y.M.C.A., 212 S.C. 337, 47 S.E.2d 788 (1948).

Moreover, construction of a statute by an agency charged with its administration will be accorded the most respectful consideration and will not be overruled absent compelling reasons. Glover by Cauthen v. Suitt Constr. Co., 318 S.C. 465, 458 S.E.2d 535 (1995); Home Health Serv., Inc. v. South Carolina Tax Comm'n, 312 S.C. 324, 440 S.E.2d 375 (1994); Laurens County Sch. Dists. 55 and 56 v. Cox, 308 S.C. 171, 417 S.E.2d 560 (1992); Jasper County Tax Assessor v. Westvaco Corp., 305 S.C. 346, 409 S.E.2d 333 (1991); Stephen v. Avins Const. Co., 324 S.C. 334, 478 S.E.2d 74 (Ct.App.1996). The verbiage used by Adecco is virtually identical to that suggested by the Department for temporary agencies.

Further, Sharon Dantzler, Deputy General Counsel for the South Carolina Department, who also helped draft the statute, elucidated:

The statute is a notice statute. It is intended to provide the employee with the information requisite to make an educated decision whether or not to accept employment. The wages, hours, and time and place of payment must be stated. The Department acknowledged the statute does not aim to treat temporary agencies any different than other employers. The Department contends the statute intends notification to the employee and employer of the minimum terms of the employment contract. Dantzler noted:

The Department believes the intent of the statute is met if a temporary agency, in its notice, advises the employee there will be variations in the terms of employment from assignment to assignment. This can be achieved by providing the employee with the minimum terms or a range of possible terms. We agree.

CAFE and Stern contend each temporary employee must be given written notice of their specific pay for each assignment. We disagree.

The interpretation proposed by CAFE and Stern's would be impractical, unreasonable, and reach an absurd result. Requiring the agency to provide notice for each individual assignment, in which wages and hours may differ, could lead to the rules being changed mid-stream. If the agency has agreed to a minimum amount or number of hours for one assignment, and that is the basis of the temporary employee agreeing to work for the specific agency, there is nothing to prevent the agency from providing a different wage or number of hours in the second assignment. Thus, the intent of the statute would be defeated.

CAFE and Stern's interpretation would work a disservice upon the temporary employee, and eliminate many of the assignments temporary employees are intended to fill. The trial judge's order illuminated:

Indubitably, depriving the temporary employee of a possible position is not what was intended by the general assembly in passing this notification statute.

CONCLUSION

While we find neither Stern nor CAFE have standing to bring this action, we have addressed the merits due to their public importance. We believe it necessary to eliminate the confusion surrounding S.C.Code Ann. § 41-10-30(A) (Supp. 1998) and provide future guidance to the Department and temporary agencies. We rule the posting recommended by the Department for use in temporary agencies, and the one utilized by Adecco, satisfy the requirements of the statute as a matter of law.6 The trial judge's grant of summary judgment for the Department is

AFFIRMED.

GOOLSBY and CONNOR, JJ., concur.