Piper Aircraft Corp. v. Wag-Aero, Inc. , 741 F.2d 925 (7th Cir. 1984). The doctrine of laches will bar a claim when three elements are present: 1) there is a delay in asserting a right or a claim; 2) that the delay was not excusable; and 3) that there was undue prejudice against whom the claim is asserted. Strawn v. Missouri State Board of Education , 210 F.3d 954, n.3 (8th Cir. 2000); Venus Lines Agency, Inc. v. CVG International America, Inc. , 234 F.3d 1225, 1230 (11th Cir. 2000).
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In this case, none of the necessary elements of laches are present. First, Mr. Birkheart, with the United States Department of Labor appeared at Respondent's place of business a week after Ms. Martin's employment ended to investigate possible violations of the FLSA. (Tr. 148). Mr. Hudson testified that he received a fine, and filed an objection through an attorney in November 1997, and he thought the matter was over. (Tr. 152-53). For reasons not clear in the record, the case was assigned to the Office of Administrative Law Judges for a formal hearing on February 13, 2001. Despite the long delay between Respondent's objection and the formal hearing, Respondent was on notice that the Department of Labor was asserting its authority to impose a civil money penalty for violations of the FLSA soon after the workplace injury to Sharee Martin. Laches applies to delays in time for commencing a suit, not for delays in litigation. See Boone v. Mech. Specialties Co. , 609 F.2d 956, 958 (9th Cir. 1979) (stating that laches applies to the parties right to bring suit). Here, the Department of Labor exercised it right to bring suit against Respondent in November 1997, in response to FLSA violations that occurred in September 1997, which is not undue delay under the circumstances.
Likewise, failing to show an unreasonable delay in bringing an action, Respondent fails for the same reasons to demonstrate that the delay was inexcusable. Finally, Respondent failed to show any undue prejudice for failing to bring the claim (or have the formal hearing) earlier. Respondent alleged that the passage of time prohibited him from producing a poster that he relied on detailing child labor laws for the State of Arkansas. (Tr. 37). Respondent established at the formal hearing that he acted in accordance with what he believed was required by the Arkansas State laws, Respondent provided the Court with an exhibit of the Arkansas Child Labor Laws and Administrative Regulations, and I am free to take judicial notice of the state statutes and regulations. Thus, Respondent showed no undue prejudice.
D. Establishing a Prima Facie Case in Violation of the FLSA's Child Labor Prohibitions
The FLSA provides that "[n]o employer shall employ any oppressive child labor in commerce . . . or in any enterprise engaged in commerce." 29 U.S.C. § 212(c) (2002). "Oppressive Child Labor" is defined by the FLSA in pertinent part as a condition of employment under which "any employee between the ages of sixteen and eighteen years is employed by an employer in any occupation which the Secretary of Labor shall find and by order declare to be particularly hazardous. . . ." 29 U.S.C. § 203(l) (2002). In following this statutory directive, the Secretary of Labor wrote regulations that detail specific occupations deemed particularly hazardous for the employment of minors between the ages of sixteen and eighteen. Pertinent to this case are Hazardous Occupation Orders Numbers 10 and 11:
Occupations in the operation of power driven meat processing machines . . . .
(4) All occupations involved in the operation or feeding of the following power-driven machines, including setting-up, adjusting, repairing, oiling, or cleaning such machines, regardless of the product being processed by these machines (including, for example, the slicing in a retail delicatessen of meat, poultry, seafood, bread vegetables, or cheese etc.) . . . .
29 C.F.R. § 570.61(a)(4) (2002).
Occupations involved in the operation of bakery machines . . . .
(1) The occupations of operating, assisting to operate, or setting up, adjusting, repairing, oiling, or cleaning any horizontal or vertical dough mixer . . . .
29 C.F.R. § 570.62(a)(1) (2002).
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In this case, Respondents admitted to hiring Sharee Martin, Amanda Mudge, Shonia Lingerfelter and Bryan Brown, all between the ages of sixteen and eighteen at the time the Department of Labor investigated the alleged violations of the child labor laws in the summer of 1997. Sharee Martin testified that she was born on April 20, 1981, and operated the dough mixer and meat slicer as part of her employee duties. (Tr. 47-49, 51). Amanda Mudge, Born November 29, 1979, testified that from 1996 to 1997 she work for Respondents and operated both the dough mixer and mat slicer as part of her employment. (Tr. 78-79). Shonia Lingerfelter, born on November 9, 1979, testified that she worked for Respondent from August to September 1997, during which time she operated both the dough mixer and meat slcier. (Tr. 200-01). Bryan Brown, born February 6, 1981, worked for Respondent from 1996 to 1997, and he testified that he used both the dough mixer and the meat slicer. (Tr. 182). Respondent did not dispute these facts. Accordingly, I find that Respondent violated 29 U.S.C. § 212(c) of the FLSA, and the implementing regulations at 29 C.F.R. § 570.61-62, by employing minors between the ages of sixteen and eighteen in hazardous occupations as defined by the Secretary of Labor.
E. Assessment of a Civil Money Penalty
Any employer that violates Section 212 of the Child Labor provisions "shall be subject to a civil money penalty of not to exceed $10,000.00 for each employee who was the subject of such violation." 29 U.S.C. § 216(e) (2002); 29 C.F.R. § 579.5 (2002). In determining the appropriateness of any penalty, the statute mandates consideration of the "size of the business of the person charged and the gravity of the violation." Id . An ALJ's review of the Administrator's penalty assessment is de novo . 29 C.F.R. § 580.12(b) & (c) (2002); Acura of Bellevue v. Reich , 90 F.3d 1403, 1408 (9th Cir. 1996). In determining the appropriateness of a civil money penalty the Secretary of Labor directs:
(b) In determining the amount of such penalty there shall be considered the appropriateness of such penalty to the size of the business of the person charged with the violation or violations, taking into account the number of employees employed by that person . . ., dollar volume of sales or business done, amount of capital investment and financial resources, and such other information as may be available relative to the size of the business of such person.
(c) In determining the amount of such penalty there shall be considered the appropriateness of such penalty to the gravity of the violation or violations, taking into account, among other things, any history of prior violations; any evidence of willfulness or failure to take reasonable precautions to avoid violations; the number of minors illegally employed; the age of the minors so employed and records of the required proof of age; the occupations in which the minors were so employed; exposure of such minors to hazards and any resultant injury to such minors; the duration of such illegal employment; and, as appropriate, the hours of the day in which it occurred and whether such employment was during or outside school hours.
(d) Based on all the evidence available, including the investigation history of the person so charged and the degree of willfulness involved in the violation, it shall further be determined, where appropriate, (1) Whether the evidence shows that the violation is "de minimis" and that the person so charged has given credible assurance of future compliance, and whether a civil penalty in the circumstances is necessary to achieve the objectives of the Act; or (2) Whether the evidence shows that the person so charged had no previous history of child labor violations, that the violations themselves involved no intentional or heedless exposure of any minor to any obvious hazard or detriment to health or well-being and were inadvertent, and that the person so charged has given credible assurance of future compliance, and whether a civil penalty in the circumstances is necessary to achieve the objectives of the Act.
29 C.F.R. § 579.5 (b-d) (2002).
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Once a civil money penalty is challenged by a respondent, the issue is not whether the Administrator's computation of Wage and Hour Form 266, (WH- 266), used to assess the penalty, was correct, rather the ALJ must determine if the assessed penalties correspond to the statutory and regulatory provisions. Administrator, Wage and Hour Division v. Elderkin Farm , ARB Case Nos. 99-033, 99-048, 1995 CLA 31 (ARB June 30, 2000). Although the grid and matrix scheduled incorporated into WH-266 is an appropriate tool to recommend penalties by a field officer, and the Administrator's interpretation of a regulatory guideline is entitled to deference, that does not affect the the ALJ's scope of authority to change the Administrator's assessment. Administrator, Wage & Hour Division, v. Thirsty's, Inc. , 94 CLA 65 (ARB May 14, 1997) (stating that the ALJ's scope of authority to change the Administrator's assessments is "untrammeled"); 29 C.F.R. § 580.12(b) (2002) (stating that the ALJ shall determine the appropriateness of the penalty assessed by the Administrator). Accordingly, I will consider each of the statutory and regulator factors de novo in reviewing the Administrator's civil money penalty for Respondent's uncontested violations of the child labor provisions of the FLSA.
(1) Size of the Business
Under 29 C.F.R. § 579.5(b) (2002), the regulations mandate consideration of "the size of the business of the person charged with the violation or violations, taking into account the number of employees employed by that person . . ., dollar volume of sales or business done, amount of capital investment and financial resources, and such other information as may be available relative to the size of the business of such person." In this case, Mr. Hudson testified that he and his spouse operated the business as an unregistered partnership and employed between three and seven additional employees. (Tr.160). Additionally I note that for both Mr. and Ms. Hudson and for all the additional employees, Respondent's wage expenses (less any employment credits) totaled only $62,901.00 in 1996, $69,428.00 in 1997, and $44,975.00 in 2000. (RX 3, p. 5; RX 4, p. 4; RX 5, p. 5) Respondent declared a net business loss of $2,803.00 in 1996, $30,581.00 in 1997, and $16,578.00 in 2000. (RX 3-5). Mr. Hudson testified that the business was "surviving." (Tr. 160-61). Accordingly I find that the small "mom and pop" nature of the business, the limited number of employees, the limited amount of wages paid to the employees, and the net operating losses mitigate in favor of a lesser civil money penalty.
(2) Gravity of the Violation
In considering the gravity of the violations, the regulations direct that the ALJ take into consideration such things as prior history; willful failure to take reasonable precautions; the number, age, and occupation of minors illegally employed; records of the required proof of age; exposure of the minors to hazards; any resultant injury; the duration of such illegal employment; and, as appropriate, the hours of the day in which it occurred and whether such employment was during or outside school hours. 29 C.F.R. § 579.5(c) (2002).
(2)(a) Prior History
Respondent purchased CJ's Country Market in 1994 without having any business background. (Tr. 138). Respondent has no prior history of violations of either the federal of State of Arkansas child labor laws.
(2)(b) Wilful Failure to Take Reasonable Precautions
Respondent and the illegally employed minors testified that the dough mixer was safe to operate and the safety rings on the mixer prevented any dangerous use. (Tr. 71, 85, 153). Although Ms. Martin testified that she never saw a metal mesh glove for use when operating the meat slicer, (Tr. 66), Mr. Hudson did provide that additional precaution after Ms. Martin's injury. (Tr. 155, 201-02). Furthermore, after Respondent learned that it was illegal for persons between the ages of sixteen and eighteen to use a dough mixer and meat slicer, Respondent removed the meat slicer from his premises, prohibited anyone under the age of eighteen to use the dough mixer, and he fired "almost everybody." (Tr. 150-51, 181-82). Accordingly, I find that Respondent did not wilfully fail to take reasonable precautions in attempts to avoid injuries to minors in his employ.
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2(c) Number, Age, and Occupation of Minors Illegally Employed
Respondent employed four minor children, between the ages of sixteen and eighteen in violation of Hazardous Occupation Orders Nos. 10 and 11, by having them operate both the dough mixer and the meat slicer. (Tr. 47-49, 51, 78-79, 182, 200-01).
2(d) Records of the Required Proof of Age
Mr. Hudson testified that his spouse kept records on all minors employed and she would have supplied such information to any investigator. (Tr. 206). Mr. Curran testified that Respondent failed to maintain records of the date of births for all employed minors under the age of eighteen years. (Tr. 98). Respondent introduced no evidence to show compliance, and I give more credit to the statement of Mr. Curran that such employment records were not kept than to the statement by Mr. Hudson that such records were available on request.
2(e) Exposure to Hazards
An ALJ is not empowered with the discretion to distinguish between degrees of hazards posed in the Secretary's Hazardous Occupation Orders. Administrator, Wage and Hour Division v. Maelou, Inc. , 1992 CLA 43 (Sec'y April 14, 1995). The Secretary of Labor's declaration of fact is that the operation of a meat slicer is particularly hazardous for minors between the ages of sixteen and eighteen. 29 C.F.R. § 570.61(a)(4) (2002). I also note that the minors in Respondent's employ were exposed to the operating blade of meat slicer on a regular basis. Ms. Martin testified that she spent about fifty percent of her time working in the deli with the meat slicer. (Tr. 53). Ms. Mudge testified that she worked in the deli about twenty-five percent of her time where she used the meat slicer. (Tr. 78-79). Mr. Brown testified that he used the meat slicer almost every day, (Tr. 183), and Ms. Lingenfelter testified that she used the meat slicer. (Tr. 200-01). Although Mr. Hudson had a metal meshed glove to prevent cuts, it was not regularly used by any employee. (Tr. 155). Additionally, when cutting blocks of cheese, the minors routinely removed the metal guide used to push the cheese over the slicing blade and used their hands to move the cheese over the blade. (Tr. 56). Thus, all minors were regularly exposed to the hazards of the meat slicer.
The Secretary of Labor also declared the operation of a dough mixer hazardous as a matter of fact. 29 C.F.R. § 570.62(a) (2002). Although Respondent's minor employees were not required to frequently mix dough, all four minor employees did so on a regular basis. Ms. Martin testified that she made dough two or three times per week. (Tr. 47-49). Ms. Mudge testified that she could have mixed dough as frequently as once per week. (Tr. 78). Mr. Brown testified that he could have used the dough mixer once a week, (Tr. 183), and Ms. Lingerfelter acknowledged that she used the dough mixer. (Tr. 200-01). While Respondent's dough mixer may have been more safe than "open mixers," (Tr. 71, 85, 153), the Secretary did not distinguish between types of mixers, and any use is by a minor is de facto hazardous.
2(f) Any Resultant Injury
The only minor employee to suffer an injury engaged in a hazardous occupation was Ms. Martin, who, on August 12, 1997, cut off 1-2 centimeters of her finger near the nail head. (RX 2, p. 1-2). Her finger was "reattached," it required eight stitches, and sixteen days later her stitches were removed. Id . at 4. In the days immediately following her injury, Ms. Martin returned to the hospital on a daily basis to have her finger cleaned and bandages changed. (Tr. 60). Other than the day of her accident, Ms. Martin did not miss any work. (Tr. 63). Ms. Martin's physician discharged her from treatment on October 27, 1997, (RX 2, p. 7), but by that time, Ms. Martin had missed playing basketball her junior year of high school, and she testified that prior to October, she had trouble writing. (Tr. 62-63). At the formal hearing, Ms. Martin testified that she still has decreased sensation in the tip of her finger, but she had a full range of motion. (Tr. 185-86). Mr. Curran classified the injury as "serious," (Tr. 130-31), but after listening to testimony, he doubted if he would still consider the meat slicer injury as a serious injury. (Tr. 195).
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In the case of Frazer v. Chrislin, Inc. , 1999 CLA 5 (ALJ Dec. 17, 1999), the ALJ determined that a meat slicing cut to a minor's finger was "serious" when the minor received nine stitches, continued to experience numbness, and upon return to work, the minor resumed using the slicing machine, covering the wound with a plastic glove to make sure that it did not get wet. The injured minor was also instructed to immediately cease using the meat slicer if the health department visited the store. Id . at 6. The ALJ expressly stated that he found "no basis, in logic or in law, to consider the injury less than 'serious.'" Id . at n. 14. The ALJ also determined that a mere cut while removing a piece of meat from a meat slicer did not fall within Hazaedous Order No. 10. Id . at 5. Likewise in the case of Administrator, Wage and Hour Division v. Town of Sykesville , 2000 CLA 38 (ALJ August 9, 2001), the ALJ determined that the minor suffered a serious injury when the index finger of the minor's hand was amputated below the first joint. The respondent conceded that the minor child received a serious injury under the FLSA. Id .
Neither the FLSA nor the implementing regulations define a "serious injury." "Serious injury" is not a term used in the any of the child labor statutes. 29 U.S.C. § 203(l), 211(b), 212, 213(c-d), 215, 216, 218 (2002). Rather the statute provides that "oppressive child labor" is a condition of employment that the Secretary of Labor determines is "detrimental" to the health and well being of children. 29 U.S.C. § 203(l) (2002). Thus, the purpose of the child labor regulations is to protect the health and safety of young workers, 29 C.F.R. § 570.101 (2002), and in assessing a civil money penalty the fine is determined in part by the "resultant injury." 29 C.F.R. § 570.5(c) (2002). Given the breath of the interpretative possibilities set forth in the regulations, the administrator's interpretation, if it does not conflict with the plain meaning of the FLSA, should be granted deference. Administrator, Wage and Hour Division v. Thirsty's, Inc. , 94 CLA 65 (ARB May 14, 1997) (slip op. at 3-4) (citing U.S. v. Larionoff , 431 U.S. 864, 872 (1977)).
Based on the facts of this case, Mr. Curran, the administrator, testified that after listening to the hearing testimony he was "doubtful" as to whether Ms. Martin suffered a "serious injury." (Tr. 195). The distinction between "serious" and "non-serious" was important to Mr. Curran because WH-266 instructs that higher penalties of either $8,500.00 or $10,000.00 are to be imposed if a minor receives a "serious injury" and a "bundling" theory is used to increase the fine of other minors engaged in the same task who were not injured by multiplying the fine imposed without injury by a factor of five. (PX 1, p. 1-2). I find Mr. Curran's doubts regarding the "seriousness"of the injury are rational, in accordance with the FLSA and the implementing regulations. Ms. Martin's thumb injury resulted in eight stitches, she did not miss any work, the finger had fully healed in three months, and although she suffered from a decrease in sensation, she had no loss of motion. I also note that the surrounding circumstances of this case distinguish Ms. Martin's injury from the thumb injury in Chrislin, Inc. , where the respondent acted more egregiously and displayed open contempt for the child labor laws. Accordingly, I find that Ms. Martin's injury was not "serious" as contemplated by WH-266 in light of the statute, regulations, Mr. Curran, and the facts of this case.
2(g) Duration of Illegal Employment
Sharee Martin's illegal employment lasted from June 1, 1997 to September 21, 1997. (ALJX 1). Amanda Mudge's illegal employment lasted from May 1, 1996 to September 22, 1997. Id . Bryan Brown's illegal employment lasted from February 6, 1996 to September 22, 1997. Id . Shonia Lingerfelter's illegal employment lasted from August 20, 1997 to September 22, 1997. Id .
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(3) Exceptions to Imposition of Civil Money Penalties
The regulations provide that a violation of the child labor laws may be completely insulated from the imposition of a civil money penalty, or a further reduction in the penalty may be appropriate, when the evidence - "including the investigation history" and the "degree of wilfulness" - meets one of two conditions. 29 C.F.R. § 579.5(d) (2002); Administrator, Wage & Hour Division v. City of Wheat Ridge, Colorado , 91 CLA 22 (Sec'y April 18, 1995) (Slip op. at 5-6) (stating that if either alternative in § 579.5(d) is met then a reduction in the penalty is appropriate); Administrator, Wage & Hour Division v. Horizon Publishers & Distributors , 90 CLA 29 (Sec'y May 11, 1994) (slip op. at 9) (vacating part of the ALJ's opinion assessing a civil money penalty). Unlike the provisions in § 579.5 (b) & (c), the provision in (d) are not mandatory mitigating considerations. Administrator, Wage & Hour Division v. Supermarkets General Corp. , 90 CLA 34 (Sec'y January 13, 1993) (Slip op. at 4).
3(a) The De Minimis Exception
When the "evidence shows that the violation is "de minimis " and that the person so charged has given credible assurance of future compliance," and when a civil penalty is not necessary under the circumstances to obtain compliance with the Act, then that evidence may mitigate in favor of imposing a lesser civil money penalty or no penalty at all. 29 C.F.R. § 579.5(d)(1) (2002). Reductions or waiver of a civil money penalty were found either appropriate or inappropriate under the following circumstances:
In Administrator, Wage & Hour Division v. Thirsty's, Inc. , 94 CLA 65 (ARB May 14, 1997), the ARB determined that the employer's child labor violations were not de minimis when the employer was cited with nearly four hundred violations, the violations ranged in the degree of severity, many children were under the age of sixteen, and some of the children were subjected to multiple violations over a period of months.
In Administrator, Wage & Hour Division v. Navajo Manufacturing , 92 CLA 13 (Sec'y February 21, 1996), the Secretary overturned the extent of the ALJ's application of the de minimis exception when: children were employed to process goods for shipment in a warehouse during school breaks; the minors parents also worked in the warehouse; no minors were injured; the employer had no history of non-compliance and cooperated with the investigation; the employer terminated the employment of the minors upon notification of the violation; and when the employer made credible assurances that it would comply with the FLSA in the future. The Secretary overturned the ALJ's determination the civil money penalty should be vacated because the dispositive factor was that the employer had involved underage children working in a warehouse in violation of a Hazardous Occupation Order, but the Secretary found it appropriate to reduce the civil money penalty by seventy-five percent.
In the case of Administrator, Wage & Hour Division v. Horizon Publishers & Distributors , 90 CLA 29 (Sec'y May 11, 1994), the Secretary determined that envelope stuffing by minors constituted de minimis violations of the child labor laws when the children had flexible schedules, and the amount of work done by each minor was minimal (17 hours per child), and when the employer gave credible assurances of future compliance - supported by its lack of a history of violations of the Act - as well as the fact that the employer immediately ended employment of the minors when its practices were brought into question by the Administrator.
In Administrator, Wage & Hour Division v. Supermarkets General Corp. , 90 CLA 34 (Sec'y January 13, 1993) the Secretary refused to apply the de minimis exception when the ALJ listed eighty-eight time and hour violations. The Secretary reasoned that seventeen of the forty-six minors employed accounted for the eighty-eight violations, which was not de minimis .
In this case, Respondent was cited with a total of nine violations which involved four minors. Four of the violations were for the illegal use of the dough mixer, four violations were for the illegal use of the meat slicer, and one violation was for a failure to keep required records of minor employment. I find that Respondent gave credible assurances of future compliance. For example, Mr. Hudson credibly testified that he made efforts to comply with the State of Arkansas child labor laws and he related that had he known that he was also subjected to the federal child labor laws he would have made every effort to comply with those rules.4 (Tr. 143). As soon as Mr. Hudson learned that employing minors under the age of eighteen was illegal, he removed the meat slicer from his store, fired almost everyone under eighteen and ceased having anyone under eighteen use the dough machine. (Tr. 150-51, 181-82). Nevertheless, a minor was injured while using a meat slicer in violation of the Secretary's Hazardous Occupation Order, and I do not consider that violation sufficiently de minimis to completely insulate Respondent from the imposition of a civil money penalty.
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3(b) Lack of Previous Violations, Unintentional Exposure & Credible Assurances
The second grounds to further reduce or eliminate a civil money penalty occurs when the evidence shows the employer had no previous history of child labor violations, the cited violations did not involve intentional or heedless exposure to an obvious hazard or health detriment, the employer gives assurances of future compliance and a penalty is unnecessary to achieve the purposes of the Act. 29 C.F.R. 579.5(d)(2) (2002). Section (d)(2) of the regulations have been applied in the following cases:
In the case of Administrator, Wage & Hour Division v. City of Wheat Ridge, Colorado , 91 CLA 22 (Sec'y April 18, 1995), the Secretary determined that the exception in § 579.5(d)(2) applied when a public entity employed underage pool boys in violation of a Hazardous Occupation Order. The Secretary reasoned that the city gave credible assurances of future compliance, the minor employees were never exposed to any danger, no minor child was injured, and the violations were inadvertent. The city immediately complied with the federal child labor statute and regulations upon learning of its illegal conduct. Thus, the Secretary concluded that the imposition of a civil money penalty would not further the purposes of the Act.
In Administrator, Wage & Hour Division v. Chrislin, Inc ., 99 CLA 5 (ALJ December 17, 1999), the ALJ determined that § 579.5(d)(2) was not applicable when the employer intentionally exposed minor to the hazards of a meat slicer in violation of the Secretary's Hazardous Occupation Order.
In U.S. Department of Labor v. Bludau , 94 CLA 58 (ALJ March 12, 1996), the ALJ determined that civil money penalty was not necessary under § 579.5(d)(2) when a sixteen year old drove a fork lift and pick-up in violation of a Hazardous Occupation Order, but the job performed was not part of the minors job duties, the employer did not heedless expose the minor to the hazard, the employer was merely helping the child to earn school credit, there was no injury, no prior history of violations, and the employer assured future compliance.
In light of the regulations, the facts of the case and the jurisprudence, I do not find that the application of § 579.5(d)(2) is appropriate in this case. As discussed, supra , I find that Respondent creditably assured future compliance with the Act, and the evidence demonstrates that Respondent had no prior violations of the Act. Regardless of Respondent's good faith in complying with state child labor regulations, Respondent still intentionally exposed minors to the hazards of both the dough mixer and meat slicer. Three weeks after Ms. Martin cut her finger, Mr. Hudson informed ordered her to return to her duties in the deli slicing meat. (Tr. 146). Unlike City of Wheat Ridge, Colorado , and Bludau , but like Chrislin, Inc ., this case involved the intentional (even if well intentioned) exposure of minors to occupations deemed hazardous by the Secretary of Labor, not merely inadvertent conduct. Accordingly, I find that Respondent is not entitled to a full reduction of the civil money penalty under § 579.5(d)(2).
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(4) Weighing the Evidence
Accordingly, when considering the "size of the business"I find that the small "mom and pop" nature of Respondent's business, the limited number of employees, the limited amount of wages paid to the employees, and the net operating losses of the business mitigate in favor of a lesser money penalty. When considering the gravity of the child labor violations, Document: CJs Country Market.wpd Created by: KENNINGTON on 1/7/2003 10:41:10 AMI note that Respondent has no prior history of violating either the federal or State of Arkansas child labor provisions, and Respondent did not wilfully fail to take reasonable precautions in attempts to avoid injury to minors in its employ. While Respondent employed four minors in hazardous occupations exposing them to harm, and I find that Respondent failed to keep the proper age records, I note that the minors' exposure to the hazardous occupations was not on a continuous basis. Only one employee was injured and the resultant injury was only minor to mild. Two of the minor workers were employed for less than four months. In total, Respondent was cited with nine violations involving four different minors, but Respondent gave credible assurances of future compliance with the Act. Even though Respondent acted in reliance on the State of Arkansas child labor laws, Respondent intentionally exposed the minors to hazardous occupations and the violation of the regulations were not de minimis considering that a child suffered minor injuries. Based on all these factors, I find it appropriate to reduce the Administrator's civil money penalty of $35,575.00 by seventy percent5 to $10,672.50 6 to further the purpose of the Act.
CLEMENT J. KENNINGTON
Administrative Law Judge
[ENDNOTES]
1 References to the transcript and exhibits are as follows: Trial Transcript- Tr. ; Plaintiff's Exhibits- PX- , p. ; Respondent's Exhibits- RX- , p. .
2 Under 29 C.F.R. § 570.113(b) (2002) the Secretary construes coverage of the child labor provision in a manner consistent with coverage under the wage and hour provisions found at 29 C.F.R. § 776 & 779.
3 Section 216(e) of the FLSA does not contain an independent statute of limitations for bringing an action in violations of the child labor laws. 29 U.S.C. § 216(e) (2002). Likewise there is no independent regulation of limitation provided by the Secretary's rules. 29 C.F.R. § 570 & 580 (2002). Under 28 U.S.C. § 2462 (2002), however, "an action, suit or proceeding for the enforcement of a civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued . . . ."
4 The Arkansas child labor laws provide that children under the age of sixteen shall not engage in hazardous occupations. (RX 6). See A.C.A. § 11-6-107 (2002) (providing that no child under the age of sixteen shall be employed to operate circular or band saws); AR ADC 010-14-001 § 2.301(b) (2002) (providing that children under the age of sixteen shall not operate power driven meat slicers or do any baking).
5 Percentage deductions based on the total amount of the civil money penalty assessed by the Administrator are proper. Administrator, Wage & Hour Division v. Navajo Manufacturing , 92 CLA 13 (Sec'y February 21, 1996) (mitigating the Administrator's civil money penalty by seventy-five percent); Administrator, Wage and Hour Division v. D.D. & D., Inc. , 1990 CLA 35 (Sec'y April 3, 1995) (mitigating the Administrator's civil money penalty by forty percent).
6 I note that this reduction fairly comports with the Administrator's testimony at trial that if Ms. Martin's injury was not deemed a "serious injury" on the WH-266, then the civil money penalty would be the same as that imposed for operation of the dough mixer, or $1,200.00 for each minor engaged in that work. As such, a total of $4,800.00 would have been assessed for the operation of the meat slicer, and an additional $4,800.00 for operation of the dough mixer, plus a $275.00 failure to keep records would have resulted in a total fine of $9,875.00 under WH-266.