Debbra Spor and Demita Jo Elliott appeal from the trial court's
dismissal of their action for wrongful withholding of wages.
Spor and Elliott filed a class action lawsuit in district court
alleging that Presta Oil Company, Inc., was wrongfully
withholding wages. They made various claims under K.S.A. 44-313
et seq., the Kansas Wage Payment Act, and a claim for violation
of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et
seq. (1988). Plaintiffs requested a declaratory judgment that
Presta's practice was wrongful; an injunction against such
practices by Presta; plus actual, statutory, and punitive
The class was never certified. Presta moved to dismiss, arguing
that actions under the wage payment act must be brought with the
Secretary of Kansas Department of Human Resources.
The district court dismissed the case.
The basis for the dismissal was that the plaintiffs have failed
to exhaust their administrative remedies pursuant to the Kansas
Wage Payment Act, K.S.A. 44-313 et seq.
In the Act for Judicial Review and Civil Enforcement of Agency
Actions, K.S.A. 77-612 provides: "A person may file a petition
for judicial review under this act only after exhausting all
administrative remedies." Here, plaintiffs did not seek judicial
review of an agency action; they initially sought to bring their
case before a district court.
The issue presented is the question of concurrent jurisdiction
of the district court and the Kansas Department of Human
Can plaintiffs choose their forum by initially filing their
claim with the district court or the Department of Human
K.S.A. 44-322 and K.S.A. 1989 Supp. 44-322a establish a
comprehensive administrative remedy for claims for back wages.
K.S.A. 44-324(a) provides: "Any proceeding by one or more
employees to assert any claim arising under or pursuant to this
act may be brought in any court of competent jurisdiction." This
is clear, unambiguous language granting courts> concurrent
jurisdiction with the Secretary of Human Resources to hear back
Although this question has not been considered on appeal by a
Kansas court previously, there are at least six reported
appellate cases where an employee had brought a claim directly in
district court. See Temmen v. Kent-Brown Chev. Co.,
227 Kan. 45, 605 P.2d 95 (1980); Wells v. Davis, 226 Kan. 586, 603 P.2d 180
(1979); Head v. Knopp, 225 Kan. 45, 587 P.2d 867 (1978);
Holder v. Kansas Steel Built, Inc., 224 Kan. 406, 582 P.2d 244
(1978); McGowen v. Southwestern Bell Tel. Co., 215 Kan. 887,
529 P.2d 97 (1974); Benjamin v. Manpower, Inc., of Wichita,
3 Kan. App. 2d 657, 600 P.2d 148 (1979).
One federal case, Smith v. MCI Telecommunications Corp., 124
F.R.D. 665 (D. Kan. 1989), did touch on K.S.A. 44-324(a). Smith
stands for the proposition that at least where an employee
asserts a claim under the wage payment act and under statutes
over which the Secretary of the Kansas Department of Human
Resources would have no jurisdiction (RICO), the employee may
proceed directly in a trial court. Because the holding of Smith
is limited and it is not binding precedent, it is ...