(a) The Administrator may assess a civil money penalty not to
exceed $1,000 per nurse per violation, with the total penalty not to
exceed $10,000 per violation. The Administrator also may impose
appropriate remedies, including the payment of back wages, the
performance of attested obligations such
as providing training, and reinstatement and/or wages for laid off U.S.
nurses.
(b) In determining the amount of civil money penalty to be assessed
for any violation, the Administrator will consider the type of
violation committed and other relevant factors. The matters which may
be considered include, but are not limited to, the following:
(1) Previous history of violation, or violations, by the facility
under the Act and subpart L or M of this part;
(2) The number of workers affected by the violation or violations;
(3) The gravity of the violation or violations;
(4) Efforts made by the violator in good faith to comply with the
Attestation as provided in the Act and subparts L and M of this part;
(5) The violator's explanation of the violation or violations;
(6) The violator's commitment to future compliance, taking into
account the public health, interest, or safety; and
(7) The extent to which the violator achieved a financial gain due
to the violation, or the potential financial loss or potential injury
or adverse effect upon the workers.
(c) The civil money penalty, back wages, and any other remedy
determined by the Administrator to be appropriate, are immediately due
for payment or performance upon the assessment by the Administrator, or
the decision by an administrative law judge where a hearing is
requested, or the decision by the Secretary where review is granted.
The facility must remit the amount of the civil money penalty, by
certified check or money order made payable to the order of ``Wage and
Hour Division, Labor.'' The remittance must be delivered or mailed to
the Wage and Hour Division Regional Office for the area in which the
violation(s) occurred. The payment of back wages, monetary relief, and/
or the performance or any other remedy prescribed by the Administrator
will follow procedures established by the Administrator. The facility's
failure to pay the civil money penalty, back wages, or other monetary
relief, or to perform any other assessed remedy, will result in the
rejection by ETA of any future Attestation submitted by the facility
until such payment or performance is accomplished.
(d) The Federal Civil Penalties Inflation Adjustment Act of 1990,
as amended (28 U.S.C. 2461 note), requires that inflationary
adjustments to civil money penalties in accordance with a specified
cost-of-living formula be made, by regulation, at least every four
years. The adjustments are to be based on changes in the Consumer Price
Index for all Urban Consumers (CPI-U) for the U.S. City Average for All
Items. The adjusted amounts will be published in the Federal Register.
The amount of the penalty in a particular case will be based on the
amount of the penalty in effect at the time the violation occurs.
