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| October 8, 2008 DOL Home > SOL |  |
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Keystone Floor Administrator's Reply Brief In the Matter of:
ADMINISTRATOR, WAGE AND HOUR DIVISION, UNITED STATES DEPARTMENT OF LABOR,
Petitioner,
UNITED STATES DEPARTMENT OF LABOR, ARB Case No. 03-056 v.
KEYSTONE FLOOR REFINISHING COMPANY, INC., d/b/a KEYSTONE FLOOR REFINISHING COMPANY; and DANIEL LIEZ, Individually and as President of the aforementioned corporation, Respondents. ADMINISTRATOR'S REPLY BRIEF
HOWARD M. RADZELY Acting Solicitor of Labor
STEVEN J. MANDEL Associate Solicitor
PAUL L. FRIEDEN Counsel for Appellate Litigation
ROGER W. WILKINSON Attorney Office of the Solicitor
Suite N-2716
(202) 693-5555 In the Matter of: ADMINISTRATOR, Petitioner, ARB Case No. 03-056 v. KEYSTONE
FLOOR REFINISHING Respondents. ADMINISTRATOR'S REPLY BRIEF The Administrator submits this reply brief to rebut several points raised by Keystone in its response brief.
1.
Keystone asserts that the Administrative Law Judge's ("ALJ")
decision to reverse and
vacate the recordkeeping violation and related civil money penalty
("CMP") was justified because the "assessment document" did not
specify the recordkeeping requirement that was violated. (Resp. br. 5). As the
Administrator argued in her opening brief, however, Wage-Hour's CMP
Computation Worksheet (based on Wage-Hour Form 266) clearly
describes, on its face, the recordkeeping violation under 29 C.F.R.
516.2(a)(3) that was reversed by the ALJ. The worksheet specifically
assessed a $275 CMP for "CL Recordkeeping - failure to have date of
birth." That
description tracks the regulatory language and sets forth the
precise nature of the recordkeeping violation under 29 C.F.R.
516.2(a)(3).
3. Keystone's argument that it
was in "substantial compliance" with the regulation at 29 C.F.R.
516.2(a)(3) (Resp. br. 3-4) is incorrect. [1]
Specifically, Keystone
points to a "statement in respondents' records" listing Robert
Martin's age as 18 (Resp. br. 4). But this statement (RX4),
based on Keystone's office manager's testimony that Martin told her
upon applying for a job that he was 18, is not sufficient to comply
with the explicit requirement of 29 C.F.R. 516.2(a)(3) to maintain
and preserve a record of the date of birth of an employee under 19
years of age.
Indeed, the office manager's testimony that Martin
informed Keystone that he was an employee under 19 years
of age should have put Keystone on notice that it was required to
keep a record of his date of birth in accordance with that
regulation. Moreover,
the dispute between the parties concerning Martin's age
(Martin testified that he told the office manager that he was
17-years-old) underlines the importance of the regulatory
requirement that an employer maintain a record of the date of birth
for an employee under 19 years of age.
4. Keystone blatantly misrepresents the Administrator's position by stating that "plaintiff’s brief nowhere mentions the fact that the ALJ has the authority to eliminate any assessed penalty" (Resp. br. 4). Actually, the Administrator’s opening brief states: "While we do not question an ALJ's authority, in appropriate cases, to reduce or eliminate the CMPs assessed by Wage-Hour by independently relying on relevant statutory and regulatory factors, in this case no such independent statutory or regulatory reasoning was provided" (Administrator's br. 13). CONCLUSION For the reasons stated in her opening brief, and in this reply brief, the Administrator respectfully requests that that part of the ALJ's decision reversing the recordkeeping violation, and the attendant CMP, assessed by the Administrator for Keystone's failure to maintain and preserve a record of the date of birth of the minor employee pursuant to 29 C.F.R. 516.2(a)(3) be reversed, and the full recordkeeping penalty restored. Respectfully submitted,
HOWARD M. RADZELY Acting Solicitor
STEVEN J. MANDEL Associate Solicitor
PAUL L. FRIEDEN Counsel for Appellate Litigation
______________________________ ROGER W. WILKINSON Attorney Office of the Solicitor Suite N-2716 (202) 693-5555 CERTIFICATE OF
SERVICE I certify that on this day of October, 2003, a copy
of the forgoing Reply Brief of the Administrator was sent by first
class Mervin M. Wilf, Esq.
d/b/a/ Keystone Floor Refinishing
________________________ ROGER W. WILKINSON Attorney Footnote [1] "Substantial compliance" is not a concept that is applicable in the child labor context. Cf. Martin v. Funtime, Inc., 963 F.2d 110, 115 (6th Cir. 1992) ("[A]n employer's responsibility for child labor violations approaches strict liability, and an employer cannot avoid liability by arguing that its supervisory personnel were not aware of the violation, or by simply adopting a policy against employing children in violation of the Act."). |
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