(a) Any employee receiving a special minimum wage at a rate
specified pursuant to subsection 14(c) of FLSA or the parent or guardian
of such an employee may petition the Secretary to obtain a review of
such special minimum wage rate. No particular form of petition is
required, except that a petition must be signed by the individual, or
the parent or guaradian of the individual, and should contain the name
and address of the employee and the name and address of the employee's
employer. A petition may be filed in person or by mail with the
Administrator of the Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, Room S3502, 200 Constitution
Avenue NW., Washington, DC 20210. The petitioner may be represented by
counsel in any stage of such proceedings. Upon receipt, the petition
shall be forwarded immediately to the Chief Administrative Law Judge.
(b) Upon receipt of a petition, the Chief Administrative Law Judge
shall, within 10 days of the receipt of the petition by the Secretary,
appoint an Administrative Law Judge (ALJ) to hear the case. Upon
receipt, the ALJ shall notify the employer named in the petition. The
ALJ shall also notify the employee, the employer, the Administrator, and
the Associate Solicitor for Fair Labor Standards of the time and place
of the hearing. The date of the hearing shall be not more than 30 days
after the assignment of the case to the ALJ. All the parties shall be
given at least eight days' notice of such hearing. Because of the time
constraints imposed by the statute, requests for postponement shall be
granted only sparingly and for compelling reasons.
(c) Hearings held under this subpart shall be conducted, consistent
with statutory time limitations, under the Department's rules of
practice and procedure for administrative hearings found in 29 CFR part
18. There shall be a minimum of formality in the proceeding consistent
with orderly procedure. Any employer who intends to participate in the
proceeding shall provide to the ALJ, and shall serve on the petitioner
and the Associate Solicitor for Fair Labor Standards no later than 15
days prior to the commencement of the hearing, or as soon as practical
depending on when the notice of a hearing as required under paragraph
(b) of this section was received, that documentary evidence pertaining
to the employee or employees identified in the petition which is
contained in the records required by Sec. 525.16 (a), (b), (c) and (d).
The Administrator shall be permitted to participate by counsel in the
proceeding upon application.
(d) In determining whether any special minimum wage rate is
justified, the ALJ shall consider, to the extent evidence is available,
the productivity of the employee or employees identified in the petition
and the conditions under which such productivity was measured, and the
productivity of other employees performing work of essentially the same
type and quality for other employers in the same vicinity and the
conditions under which much productivity was mesured. In these
proceedings, the burden of proof on all matters relating to the
propriety of a wage at issue shall rest with the employer.
(e) The ALJ shall issue a decision within 30 days after the
termination of the hearing and shall serve the decision on the
Administrator and all interested parties by Express Mail or other
similar system guaranteeing one-day delivery. The decision shall contain
appropriate findings and conclusions and an order. If the ALJ finds that
the special minimum wage being paid or which has been paid is not
justified, the order shall specify the lawful rate and the period of
employment to which the rate is applicable. In the absence of evidence
sufficient to support the conclusion that the proper wage should be less
than the minimum wage, the ALJ
shall order that the minimum wage be paid.
(f) Within 15 days after the date of the decision of the ALJ, the
petitioner, the Administrator, or the employer who seeks review thereof
may request review by the Secretary. No particular form of request is
required, except that a request must be in writing and must attach a
copy of the ALJ's decision. Requests for review shall be filed with the
Secretary of Labor, 200 Constitution Ave. NW., Washington, DC 20210. Any
other interested party may file a reply thereto with the Secretary and
the Administrator within 5 working days of receipt of such request for
review. The request for review and reply thereto shall be transmitted by
the Administrator to all interested parties by Express Mail or other
similar system guaranteeing one-day delivery.
(g) The decision of the ALJ shall be deemed to be final agency
action 30 days after issuance thereof, unless within 30 days of the date
of the decision the Secretary grants a request to review the decision.
Where such request for review is granted, within 30 days after receipt
of such request the Secretary shall review the record and shall either
adopt the decision of the ALJ or issue exceptions. The decision of the
ALJ, together with any exceptions issued by the Secretary, shall be
deemed to be a final agency action.
(h) Within 30 days of issuance of the final action of the Secretary
reviewing the decision of the ALJ or declining to grant such review, any
person adversely affected or aggrieved by such action may seek judicial
review pursuant to chapter 7 of title 5, United States Code. The record
of the case, including the record of proceedings before the ALJ, shall
be transmitted by the Secretary to the appropriate court pursuant to the
rules of such court.
