On October 20, 2000, Joseph Marzullo ("Marzullo"), who was then a sixteen year old student at Malden Catholic High School, was working after school as a cleaner at Fisherman's. The cleaner position at Fisherman's was responsible for cleaning the entire premises, from front to rear, including loading palettes of trash onto Fisherman's trucks in the back parking lot at the end of the day. The cleaners were responsible for gathering trash from the premises, placing the trash on wooden palettes, wrapping the trash palettes with plastic, and then placing the loaded palettes in the back of the larger of Fisherman's three delivery trucks when it returned to the premises at the end of the day. The duty of loading the trucks involved the use of a 5,500 pound forklift to lift the palettes of trash into the back of the delivery truck. While Marzullo was operating the forklift, the machine overturned and landed on top of him. Marzullo was extracted from under the forklift and transported to the hospital where he expired.

   As a result of the accident, the investigator from DOL's Wage and Hour Division conducted an examination of Fisherman's business operation in October of 2000. As a part of this examination, the investigator examined the company's payroll records, inspected the business premises, and interviewed some of Fisherman's employees. Personal interviews were conducted with several minors, and mail interviews were sent to all minors employed at Fisherman's. Based on this inquiry, the investigator determined that Fisherman's committed the following child labor violations from October of 1998 through October of 2000: (1) recorded incorrect dates of births of some of the minors; (2) permitted minors under the age of 16 years to work excessive hours and beyond prescribed time limits; (3) allowed minors under the age of 18 years to operate a forklift; and, (4) permitted minors under the age of 18 years to engage in performing cleaning activities in a fish processing plant which has been determined by the Secretary to be a hazardous occupation. SX 2. The investigator's recommendations and report were submitted to the District Director of the Wage and Hour Division for the purpose of determining the civil money penalties to be assessed against Fisherman's for the child labor violations. SX 2. The District Director used a Child Labor Civil Money Penalty Report (Form WH-266) to compute the recommended penalties against the respondent. SX 3; TR. 629-642. The WH-266 was developed by the Wage and Hour Division to standardize the application of statutory and regulatory factors by its officials to assessments of civil money penalties for child labor violations. Administrator v. Merle Elderkin, d/b/a Elderkin Farm, USDOL/OALJ Reporter (HTML), ARB Nos. 99-033, 99-048, ALJ No. 1995-CLA-31 at 10 (ARB June 30, 2000).

III. Findings of Fact and Conclusions of Law

   The child labor provisions of the FLSA were enacted to protect working children from physical harm and to limit their working hours to prevent interference with their education. Administrator, Wage and Hour Division v. Thirsty's Inc., USDOL/OALJ Reporter (HTML), ALJ No. 1994-CLA-65 (ARB May 14, 1997). Section 12(c) of the FLSA prohibits any employer from employing oppressive child labor in interstate commerce. 29 U.S.C. § 212(c). Oppressive child labor is defined at section 3(l) of the FLSA as employment of any child between the ages of 16 and 18 in any occupation which the Secretary has found to be particularly hazardous or detrimental to children's health and well-being and employment of any child under the age of 16, unless the employment is confined to periods which the Secretary has determined will not interfere with children's schooling and under conditions which the Secretary has determined will not interfere with their health and well-being. 29 U.S.C. § 203(l). My determination in this matter is limited to whether the Respondents have committed violations of section 12 of the FLSA and the appropriateness of the assessed penalty. 29 C.F.R. § 580.12(b).

   A. Child Labor Violations of the FLSA

       1. Stipulations and Admissions

RX 3. Further, the Respondents have admitted to the forklift violations and the Secretary's use of a "five times multiplier" in assessing the civil money penalties with respect to minor employees who were present at Fisherman's at the time of Marzullo's death; Respondent's Closing Statement at 2; and they have admitted to the forklift violations assessed for six additional minors; namely, Michael Armenio, Justin Curreri, John Twiman, Aaron Cuscuna, Justin Quiles and Paul DiPierro. Respondents' Findings of Fact at 7-13. These admissions are consistent with the Secretary's determination, embodied in Hazardous Order 7 which is discussed in greater detail below, that occupations involving the operation of a forklift or "high-lift truck" are particularly hazardous for minors between the ages of 16 and 18 years of age. 29 C.F.R. § 570.58(a)(1). Based on their stipulations and admissions, I find that the Respondents committed the following violations of section 12 of the FLSA: (1) allowing ten minors, including Joseph Marzullo, to operate the forklift; and (2) allowing Sean Donovan and Robert Leon to work hours in excess of those permitted under the FLSA and the Secretary's implementing regulations. The Secretary has assessed a total of $72,400.00 in civil money penalties for these violations.

       2. Contested Violations

   Although they have admitted a number of violations and accepted the civil money penalties assessed by the Secretary for these violations, the Respondents have contested several other violations of the FLSA which the Secretary has alleged they committed in connection with Fisherman's employment of minors. The contested violations involve operation of a forklift in violation of Hazardous Order 7, failure to keep records required by the FLSA and employment of minors for excessive hours during a school day. The Respondents have also challenged the Secretary's application of a "five times multiplier" to calculate the penalty amount for each and every forklift violation.

          a. Contested Forklift Violations

   The pertinent part of the Secretary of Labor's Hazardous Order 7, which is set forth in the FLSA regulations, provides that occupations involving the operation of an elevator, crane, derrick, hoist or high-lift truck are particularly hazardous for minors between the ages of 16 and 18 years of age. 29 C.F.R. § 570.58(a)(1). Subsection (b)(5) of that section defines a high-lift truck as "a power-driven industrial type of truck used for lateral transportation that is equipped with a power-operated lifting device . . . in the form of a fork platform . . . [or] a ram, scoop, shovel, crane, or other attachments for handling specific loads." That section goes on to indicate that a high-lift truck is intended to include "high-lift trucks known under such names as forklifts, fork trucks, forklift trucks, tiering trucks, or stacking trucks . . . ." 29 C.F.R. § 570.58(b)(5).

   Andrew Bellizia commenced work at Fisherman's on October 26, 1998 and last worked there on or before November 27, 1998. TR. 531. He was 16 years old during the period of his employment. TR. 531. Mr. Bellizia testified that he used the forklift to move boxes from the top of a freezer inside the fish processing facility. TR.533. In addition, Mr. Bellizia testified that on one Saturday he was instructed by Fisherman's founder, Larry Graffeo, to use the forklift to unload fish from a delivery truck. TR. 534. Larry was the only individual at the office at the time and did not want to operate the forklift himself. TR. 534. Mr. Bellizia told Larry that Fisherman's foreman, Steve McCormick, had instructed him not to use the forklift because of a previous mishap where Mr. Bellizia had backed the machine into a truck. TR. 534. However, Larry insisted, and Mr. Bellizia stated that he complied because he believed Larry to be the "boss of bosses." TR. 534.

   Although Michael Graffeo testified on rebuttal that he did not recall the minors stacking boxes on top of the freezer because of the difficulty of the operation, he did admit that the forklift could have been used for such a procedure. TR. 557-558. Mr. Graffeo also testified that it was probable that Larry could have been in the store on a Saturday covering while another manager had run out. TR. 562. In addition, Mr. Graffeo conceded that Larry was treated with respect at Fisherman's and that he would not be surprised if an employee followed a direction given by him. TR. 564.

   The Respondent has not contradicted Mr. Bellizia's credible testimony that he operated the forklift on at least one occasion. Accordingly, I find that the Respondents violated section 12 of the FLSA by allowing Andrew Bellizia to operate a forklift which is prohibited by Hazardous Order 7. The Secretary has assessed a civil money penalty of $6,000.00 for this violation.

   Denny Howe commenced work at Respondent on March 22, 1999 and last worked there on May 29, 1999. Respondent's Finding of Facts at 12. He was 17 years old during the period of his employment. TR. 494. Mr. Howe testified that Stephen Donovan and Fisherman's foreman Steve McCormick attempted to train him on how to use the forklift. TR. 493. Mr. Howe testified that he got on the forklift and attempted to use the machine two or three times, but he was not good at it and did not perform any tasks other than the act of driving. TR. 496. Mr. Howe testified that the forklift he operated was an electric machine and needed to be charged. TR. 503. This testimony is consistent with the fact that the forklift that Fisherman's owned during Mr. Howe's period of employment was an electric machine. TR. 108.

   The Respondent has not contradicted Mr. Howe's testimony that he operated the forklift on at least one occasion. Accordingly, I find that the Respondents violated section 12 of the FLSA by allowing Denny Howe to operate a forklift. The Secretary has assessed a civil money penalty of $6,000.00 for this violation.

   Justin Racca commenced work at Respondent on June 1, 1999 and last worked there on June 30, 1999. Respondent's Findings of Fact at 13, RX 6. He was 15 years old during the period of his employment. Respondent's Findings of Fact at 13. Although Mr. Racca did not recall many details of his work, he testified that he used the forklift to move and unload bins of fish and that another minor who had worked there a long time had showed him how to use the machine. TR. 470, 478. Mr. Racca testified during cross-examination that he had operated a forklift prior to the one he operated while at Fisherman's. TR. 476. The testimony then proceeded into a discussion of what types of engines the previous forklifts had. TR. 476. During this cross-examination Mr. Racca appeared confused as to which forklift was being referenced and when asked to describe the type of engine that the Fisherman's forklift had Mr. Racca testified that he wasn't certain what type of engine the forklift had but that he thought it was a gas/propane type engine. TR. 476-477. The forklift that Fisherman's owned during Mr. Racca's period of employment was an electric powered machine. TR. 489-490. Under questioning by the court to clarify his testimony, Mr. Racca was adamant that he had operated a forklift while at Fisherman's. TR. 480. Mr. Racca's insistence that he operated the forklift was corroborated by Frank Snow's testimony that he witnessed Mr. Racca using the forklift to unload trucks one Saturday with Stephen Donovan. TR. 389. In rebuttal, Michael Graffeo testified that Mr. Racca, having only been employed for a period of three weeks with the company, would not have been given the duty of driving the forklift to unload bins of fish from the delivery trucks. TR. 488-489.

   Despite his confusion as to some details, which is understandable in light of the fact that he has driven other forklifts, I find Mr. Racca's testimony credible that he operated a forklift at Fisherman's. Given the corroboration provided by Mr. Snow, I find that the Respondents have not adequately rebutted Mr. Racca's testimony that he operated the forklift on at least one occasion. Accordingly, I find that the Respondents violated section 12 of the FLSA by allowing Justin Racca to operate a forklift. The civil money penalty assessed for this violation is $7,500.00.

   Frank Snow commenced work at Fisherman's on June 15, 1999 and last worked there on September 30, 1999. Respondents' Findings of Fact at 10, RX 5. He was 14 years old during the period of his employment. Respondents' Findings of Fact at 10. Mr Snow testified that Stephen Donovan and foreman McCormick showed him how to run the forklift. TR. 388. He testified that he used the forklift to unload trucks and to load trash onto the trucks at the end of the day. TR. 401,405. Mr. Snow testified that Andy Graffeo saw him unload trucks with the forklift and ultimately told Mr. Snow that he was too young to use the forklift. TR. 388-389.

   The Respondent has not contradicted Mr. Snow's testimony that he operated the forklift on at least one occasion. Accordingly, I find that the Respondents violated section 12 of the FLSA by allowing Frank Snow to operate a forklift. The Secretary has assessed a civil money penalty of $7,500.00 for this violation.

   Derek Cippoletta commenced work at Respondent on December 13, 1999 and last worked there on December 31, 1999. Respondent's Finding of Facts at 7, RX 3. He was 15 years old during the period of his employment. Respondent's Findings of Fact at 7. Mr Cipoletta was extremely vague and unresponsive in his testimony about his employment at Fisherman's. During cross-examination, he had difficulty in describing the operation of the forklift, stated that the Fisherman's forklift had a "gas type engine," and agreed on numerous occasions that the engine made a "rumm, rumm" sound when started and stopped. TR. 289, 291. When asked by the undersigned what type of engine the machine had, Mr. Cipoletta again insisted that the forklift he operated had a "gas type engine." TR. 291, 292. However, the forklift that Fisherman's possessed at the time of Mr. Cipoletta's employment was an electric machine. TR. 180.

   Based on my observations of his demeanor, I find Mr. Cipoletta's testimony to be wholly unreliable. Therefore, I find that the Secretary has not proved that the Respondents violated section 12 of the FLSA by allowing Derek Cipoletta to operate a forklift, and I find that the civil money penalty of $7,500.00 assessed for this alleged violation is not warranted.

   Although named by the Secretary as a witness, Thomas Mattuchio was not called to testify at the hearing. The record shows that he commenced work at Fisherman's on July 11, 2000 and last worked there on August 28, 2000. Respondents' Findings of Fact at 9. He was 14 years old during the period of his employment. Id. at 9. The investigator testified that the foreman at Fisherman's, Steve McCormick, admitted during the investigation that he had seen Mr. Mattuchio operate the forklift on at least one occasion. TR. 603; RX. 9. Respondents offered no contrary evidence. Based on this evidence, I find that the Respondents violated section 12 of the FLSA by allowing Thomas Mattuchio to operate a forklift. The Secretary has assessed a civil money penalty of $7,500.00 for this violation.

   David Ferrante was also named by the Secretary as a witness but did not testify at the hearing, apparently because he could not be located. TR. 882-883. The record shows that he commenced work at Fisherman's on July 1, 2000 and last worked there on July 17, 2000. Respondents' Finding of Facts at 11. He was 15 years old during the period of his employment. Id. Steven Donovan, whom Michael Graffeo identified as being responsible for teaching the minors to use the forklift, testified that Mr. Ferrante had operated the forklift at least once under his supervision. TR. 120-121, 149, 170. Respondent offered no evidence to dispute Stephen Donovan's credible testimony. Accordingly, I find I find that the Respondents violated section 12 of the FLSA by allowing David Ferrante to operate a forklift. The Secretary has assessed a civil money penalty of $7,500.00 for this violation.

   The Respondent offered no contrary evidence. Accordingly, I find that the Secretary has established that the Respondent's violated section 12 of the FLSA by allowing Ryan McDonnell to operate a forklift in contravention of Hazardous Order 7. The Secretary has assessed a civil money penalty of $7,500.00 for this violation.

          b. Contested Record Keeping Violations

    The FLSA regulations at 29 C.F.R. Part 570, Subpart B require employers to keep on file accurate birth dates for all minor employees. In light of this requirement, the burden of establishing or challenging the age of a minor employee is placed on the employer. Administrator, Wage and Hour Division v. Henderson d/b/a Piggly Wiggly Supermarket, USDOL/OALJ Reporter (HTML), ALJ No. 1991-CLA-83 at 5 (Sec'y Apr. 18, 1995). In this case, the Secretary has presented the following evidence of incorrect records maintained by the Respondents with respect to minor employees' dates of birth:

(1) The Respondent's records showed that Andrew Bellizia's date of birth was January 2, 1982; SX 1a; but Mr. Bellizia testified at hearing that his date of birth is January 12, 1982. TR 530.

(2) The Respondent's records showed that Michael Hancock's date of birth was April 12, 1985; SX 1b; but Mr. Hancock's date of birth, as verified by the investigator in his report, is March 1, 1985. SX 2.

(3) The Respondent's records showed that Michael McMahon's date of birth was January 1, 1984; SX 1c; but Mr. McMahon's date of birth, as verified by the investigator in his report, is August 7, 1985. SX 2.

(4) The Respondent's records showed that Justin Racca's date of birth was July 14, 1982; RX 6; but Mr. Racca testified at hearing that is his date of birth is July 14, 1983. TR 468.

   The Respondents have presented no defense or argument in response to these alleged violations. Based on the uncontradicted evidence, I find that the Respondents violated section 12 of the FLSA by failing to maintain records containing accurate dates of birth for four minor employees. A $275.00 civil money penalty was assessed by the Secretary for these violations. SX 3.

          c. Contested Hours Violations

   Pursuant to FLSA sections 12(c) and 3(l), the Secretary, in defining oppressive child labor, has restricted the employment of minors between the ages of 14 and 16 to no more than three hours in any day when school is in session. 29 C.F.R. § 570.35(a)(5). A $450.00 civil money penalty, derived from the Secretary's base penalty schedule, was assessed for excess hours for each minor under the age of 16 who worked at Fisherman's during the school year. SX 3. As discussed above, the Respondents stipulated to the hours violations assessed for Sean Donovan and Robert Leon, and the Secretary withdrew the hours violations assessed for Melissa DePriest and Daniel Drummonds. TR. 658, 20, 818. The Secretary has also alleged excess hours violations, and assessed civil money penalties totaling $5,400.00, based on the Respondents' employment of the following minors: (1) Derek Cipoletta; (2) Justin Curreri; (3) Aaron Cuscuna; (4) Daniel Goodhue; (5) Michael Hancock; (6) Peter Longo; (7) William Lundin; (8) Ryan McDonnell; (9) Michael McMahon; (10) Justin Racca; (11) Frank Snow; and (12) John Twiman.

   The FLSA regulations require employers to retain records of the total daily and weekly hours worked by each employee in any one workweek. 29 C.F.R. Part 516. Michael Graffeo testified that the cleaners generally began work after school at 2:45 p.m. or 3:00 p.m., depending on whether they attended parochial or public school, and they worked until closing time which was generally between 6:00 p.m. and 6:30 p.m. TR. 42-43. The cleaners would punch in with time cards at the beginning of their shift and punch out at the end of their shift. TR. 94. Michael Graffeo testified that these time cards were the most accurate representation of the hours of work that each employee worked on any given day. TR. 94. At the end of each bi-weekly pay period, Fisherman's would call into the company responsible for processing their payroll and report the total number of accumulated hours for each employee over the two week payroll period. TR. 94. Although Fisherman's retained the bi-weekly payroll records for each employee, Mr. Graffeo testified that he did not retain the time cards. TR. 97. Although the Wage and Hour Division was presented with all of the time cards that the Respondents had in their possession at the time of the examination, a one month's time frame, it appears that the original assessment of hours violations was based on employee interview statements only. TR. 606. Indeed, nothing can be determined definitively from the Respondents' payroll records, as the records are for bi-weekly pay periods and do not delineate the hours any one employee worked on a given day, or even during any given week. TR. 99.

   The Secretary argues that the dearth of documentary evidence created by the Respondents' failure to comply with the record keeping provisions of the FLSA should not inure to the Respondents' benefit. While it is true that the Respondents should not profit from the destruction of the required time records, it is equally true that the Secretary's burden of proof should not be lessened and the Respondent's due process rights be diminished in the process. It is clear from the record evidence that the destruction of time records was not motivated by an attempt to conceal any information but was rather done out of ignorance of the applicable regulations. Although I acknowledge that ignorance is no excuse, the issue of whether time records were destroyed in violation of the FLSA is not before me. What is before me is the issue of whether minor employees worked hours in excess of the maximum amount allowed under the FLSA. Accordingly, I find that the merits of the alleged hours violations must rise or fall based on the evidence presented at hearing.

   All of the minor employees generally testified that they began work after school at or around 3:00 p.m. and worked until closing at 6:00 p.m., or thereafter, but no minor employee was able to cite any specific instances when they worked in excess of the maximum allowable three hours on any particular date within the investigative period. The Secretary was able to elicit some vague testimony that employees may have worked until 6:30 p.m. on certain occasions, but there is no direct evidence that any minor specifically worked in excess of three hours at any point in time during a school week

   Mr. Longo testified that he never began work before 3:30 and never worked past 6:30 on any day while employed at Fisherman's. TR. 572-573. In addition, Mr. Longo's employee interview statement documents that he worked two and a half hour shifts during the school week. RX 7. Thus, there is no evidence that Mr. Longo worked in excess of three hours on any day while school was in session.

   Mr. Lundin testified that he would generally begin work at 3:00 p.m. and end at 6:00 p.m. TR. 367. Although he testified that there were instances where he would need to work past 6:00 p.m. in order to finish all of his duties, he did not have any specific memory of particular days when he worked past 6:00 p.m. TR. 373. Mr. Lundin also testified that he worked shifts on Saturdays from 8:00 p.m. to 4:00 p.m.. TR. 369. On this record, I find insufficient evidence to establish that Mr. Lundin worked in excess of three hours on any day while school was in session.

   Mr. Twiman testified that he generally started work after school at 3:00 p.m. and would work until 5:30 p.m. TR. 426. He also stated that on some occasions the delivery truck was late returning to Fisherman's, and he would have to wait for its arrival. On those occasions, he testified that he may have worked until 6:00 p.m. or 6:15 p.m. TR. 426. However, he had no memory of working past 6:00 on any particular day. TR. 429. Mr. Twiman also testified that he worked shifts on Saturdays from 8:00 a.m. to 4:00 p.m. TR. 429. On this record, I find that the evidence is insufficient to establish that Mr. Twiman worked in excess of three hours on any day while school was in session.

   Mr. Cipoletta testified that while employed at Fisherman's during the school year he worked from 3:15 p.m. to 6:30 p.m. from Monday to Friday. TR. 283. He also testified that he worked from about 7:00 a.m. or 8:00 a.m. until 3:00 p.m. or 4:00 p.m. on Saturdays. TR. 283. Mr. Cipoletta reiterated on cross examination that he worked three hours per day, five days a week, and eight hours on Saturday. TR. 284-285. However, Fisherman's bi-weekly payroll records document that Mr. Cipoletta worked a total of thirteen hours the first bi-weekly period that he was employed. RX 3. In addition, the payroll records document that Mr. Cipoletta worked a total of 8.75 hours the second bi-weekly period that he was employed. RX 3. The payroll records thus directly contradict Mr. Cipoletta's testimony, reflecting that the most he ever worked was 13 hours over a two week span. As previously discussed, I find Mr. Cipoletta's testimony to be completely unreliable. Accordingly, I find that there is no credible evidence that Derek Cipoletta worked in excess of three hours on any day when school was in session.

   Mr. Curreri testified that he started work after school at 3:00 p.m. and would work until 6:00 p.m. TR. 243. He further testified that he would sometimes begin later than 3:00 p.m. or stay as late as 7:00 p.m. depending on the work load or if he was running late with his chores. TR. 243, 252. He did not remember specifically working more than three hours on any one day other than Christmas Eve, which was during a school vacation break. TR. 253. Based on this testimony, I find that there is insufficient evidence to establish that Justin Curreri worked in excess of three hours on any day while school was in session.

   Mr. Cuscuna testified that his normal work day was from 3:00 p.m. to 6:00 p.m. TR. 357. Although he testified that he would sometimes stay later than 6:00 p.m., depending on whether all of his cleaning chores had been completed by that time, he was unable to identify any specific instance where he worked in excess of three hours on any particular day. TR. 345. Accordingly, I find that the Secretary has not carried her burden of establishing that Aaron Cuscuna worked in excess of three hours on any day while school was in session.

   Mr. Snow testified that he began work at Fisherman's in the final week of school before summer vacation began. TR. 403. During that first week, he generally began work between 2:30 p.m. and 3:00 p.m. and would work until the cleaning duties were complete at around 6:30 p.m. or 7:00 p.m. TR. 389. Aside from this one general statement, there is no testimony of any specific instances where Mr. Snow worked in excess of three hours on any one day. Mr. Snow testified that after the first week he generally worked on Saturdays, as it was the summertime. TR. 389. On this record, I find that the evidence does not support a determination that Frank Snow worked in excess of three hours on any day while school was in session.

   Mr. Racca testified that he began work after school between 3:00 p.m. and 3:30 p.m. and would work until closing at 5:00 p.m. or 6:00 p.m. TR. 472. Mr. Racca testified that he could not remember ever working past 6:00 p.m. during the school year. TR. 472. On this record, I find that no evidence has been presented to establish Justin Racca worked in excess of three hours on any day while school was in session.

   The Secretary has alleged that the Respondents employed these four minors, none of whom were called to testify at the hearing, for excessive hours on school days. In the absence of direct testimony, the Secretary relies on Fisherman's payroll records to support a finding that the assessed hours violations occurred. However, the Secretary concedes that reliance on the payroll records is misplaced. Secretary's Post-hearing Brief at 21. Moreover, the Wage and Hour Division investigator testified that the bi-weekly records are not reliable evidence of the employee's work hours because they fail to show daily or weekly hour breakdowns. TR. 890. Consequently, I find that no reliable evidence has been presented to establish that Ryan McDonnell, Michael Hancock, Michael McMahon or Daniel Goodhue were employed for more than three hours on any day while school was in session.

   Based on the foregoing analysis, I find that the evidence does not establish that the Respondents violated section 12 of the FLSA by employing any of the 12 minor employees discussed above in excess of the hours permitted under the Secretary's FLSA regulations. Accordingly, I conclude that the civil money penalties totaling $5,400.00 which were assessed for these alleged violations are not warranted.

   B. Appropriateness of Assessed Civil Money Penalties

   In my view, the question of whether the Secretary correctly calculated the civil money penalty is not before me as the ARB has held that "the proper inquiry for an ALJ when reviewing a child labor civil money penalty is whether the penalty assessed by the Administrator is appropriate in light of the statutory and regulatory factors, and not whether the penalty comports with the Form WH-266 schedule." Administrator v. Elderkin, USDOL/OALJ Reporter (HTML), ARB Case Nos. 99-033, 99-048, ALJ No. 1995-CLA-31 at 11 (ARB June 30, 2000), citing Sellersburg Stone Company v. FMSHRC, 736 F.2d 1147 (7th Cir. 1984) (under the Mine Safety and Health Act, statutory factors and not Mine Safety and Health Administration's penalty proposal formula are to be used by Federal Mine Safety and Health Review Commission and its ALJs to determine penalties). See also Fraser v. Ahn's Market, Inc., USDOL/OALJ Reporter (HTML), ARB Case No. 99-024, ALJ No. 1997-CLA-33 at 7 (ARB July 28, 2000). Moreover, even assuming that the matter of the Secretary's interpretation of the WH-266 schedule was properly before me, I conclude that her interpretation is a reasonable one that I am obligated to uphold.

   It is well established that where an agency's regulatory interpretation is not plainly inconsistent with the wording of the regulations and the regulations are consistent with the statute, the agency's interpretation should be afforded due deference. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-845 (1984) (considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer); Udall v. Tallman, 380 U.S. 1, 16 (1965) (the Court will clearly give deference to an agency's interpretation of its own regulations); Bowles v. Seminole Rock and Sand Co., 325 U.S. 410, 414 (1965) (the ultimate criterion for judicial construction of an ambiguous regulation is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.). The Secretary's penalty schedule has consistently been upheld by the Administrative Review Board and the courts. In Administrator, Wage and Hour Division v. Thirsty's, Inc., USDOL/OALJ Reporter (HTML), ARB No. 96-143, ALJ No. 1994-CLA-65 (May 14, 1997), the Administrative Review Board held:

We find that the Administrator's operational interpretation is reasonable and consistent with Congressional purpose and regulatory guidelines . . . Consequently we find that although the penalty schedule [does] not reference each criterion of the regulatory guidelines, nevertheless it is a reasonable interpretation of those guidelines and within the broad authority granted an agency charged with implementing those regulations.

Id. at 4. The Board's decision was affirmed by the reviewing federal district court which agreed that "Form WH-266 incorporates the mandatory regulatory factors into its penalty schedule, and consequently is appropriately utilized to calculate penalties for child labor violations." Thirsty's, Inc. v. United States Department of Labor, 57 F. Supp.2d 431, 436-437 (S.D. Tex. 1999).

   The Respondents do not challenge the Secretary's base penalty schedule but rather argue that the factor of five should be added to the base penalty of a minor's violation only where a death or serious injury involving a minor employee occurred during the period of that minor's employment. The Respondents thus accept responsibility for the factor of five added to the base penalty of the two minor employees, Sean Donovan and Robert Leon, who were "similarly employed", or actually present on Fisherman's premises at the time of the fatal accident. However, the Respondents argue for a strict reading of the term "similarly employed" to include only minors who were actually employed on the date of Mr. Marzullo's death. The Respondents assert that no other minor employees, other than those identified in the stipulations, were "similarly employed" at the time of the accident and, therefore, the factor of five should not be applied to the base penalty for any of the forklift violations involving other minors.

   The Secretary's penalty schedule does not make the distinction as to whether the "similarly employed" minors were actually employed at the time that the serious injury or death occurred. Rather, it applies the factor of five for any minor employed in violation of the same hazardous order under which the serious injury or death occurred. The investigator testified at length that the term "similarly employed" refers to the type of violation that occurred, not to a period of time of employment so that any individual who operated the forklift was deemed to be "similarly employed" with Joseph Marzullo because at the time of the operation of the forklift that individual was similarly exposed to the same hazards that produced Marzullo's death. TR 891. Administrative Law Judge Ralph Romano approved this rationale, stating,

That these minors were not, in fact, injured when they illegally came in contact with this machine, cannot rationally be viewed as the result of an acceptable risk taken by Respondents, excusable when viewed retrospectively. The good fortune of these minors in not being injured cannot/should not inure to Respondent's benefit.

Administrator v. Chrislin, Inc., d/b/a Big Wally's, 1999-CLA-5 at 6 (ALJ Dec. 17, 1999). I concur with Judge Romano's analysis and find that the Secretary's use of the factor of five to increase the base penalty for each minor employee who was allowed to use the instrumentality that caused a serious injury or death to be a reasonable interpretation of the regulations which is entitled to due deference. Accordingly, The Respondents' challenge to the application of the factor of five is rejected.

       2. Exemptions from Civil Money Penalties

   The Secretary's FLSA regulations exempt violators from civil money penalties in certain circumstances where the violation is "de minimis" or where the exposure of minors to a hazard was inadvertent. See Echaveste v. Q & D, d/b/a Lamplighter Tavern, USDOL/OALJ Reporter (HTML), ALJ Case No. 1992-CLA-21 at 5 (Sec'y May 11, 1994). Specifically, section 579.5(d) of the regulations requires an adjudicator to take the following factors into consideration when determining whether to impose a civil monetary penalty for a violation of the FLSA's child labor provisions:

(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(d). In my view, the 14 occupation violations and 17 forklift violations committed by the Respondents cannot be characterized as de minimis. As to whether the violations were intentional or heedless, I find no evidence in this record of

any intent on the part of the Respondents to expose any minor to danger or, for that matter, to violate the FLSA's child labor provisions. To the contrary, Mr. Graffeo displayed commendable candor and sincerity on the witness stand, and he impressed me as a conscientious and honest businessman who is genuinely concerned for the welfare of his employees and who has deep remorse for the fatal accident that occurred at his family's place of business. At the same time, the evidence adduced at the hearing leaves no doubt that the Respondents were aware, or at least should have been aware through the exercise of minimal diligence, that their minor employees were routinely operating the forklift and, indeed, were expected to do so as part of their assigned duties. Although I find no intention to expose employees to danger or to violate the law, I cannot escape the conclusion that the tragic death in this case is precisely the type of harm that the child labor provisions and Hazardous Order 7 are intended to prevent. The requirements of the law were not followed in this case, and I am constrained to find that the Respondent's actions in allowing minor employees to operate the forklift constituted a "heedless exposure" to an obvious hazard within the meaning of Section 579.5(d)(2). Consequently, I conclude that the section 579.5(d) exemptions are not available to relieve the Respondents of liability for civil money penalties.

       3. Appropriateness of the Assessed Penalty

   Section 16(e) of the FLSA provides that in determining the amount of a civil money penalty, "the appropriateness of the penalty to the size of the business of the person charged and the gravity of the violation shall be considered." 29 U.S.C. § 216(e). The Secretary's FLSA regulations list several factors to be taken into account in weighing the appropriateness of an assessed penalty in relation to the size of the business and gravity of the violation:

(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 (and if the employment is in agriculture, the man-days of hired farm labor used in pertinent calendar quarters), 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 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.

29 C.F.R. § 579.5(b) and (c). The Respondents urge reduction of the assessed penalty by one half, arguing that Fisherman's is a small company with less than twenty

   With regard to the gravity of the violations, there is no evidence of any prior child labor violations by the Respondents, and there is no evidence that the violations in this case were willful or that there was any employment of minors during school hours or in excess of permitted hours on school days. On the other hand, I find that the Respondents failed to take reasonable precautions, such as inquiring into their responsibilities under the FLSA, to avoid violations. I have also found that 16 minors between the ages of 14 and 16 were employed in an occupation prohibited by the Secretary's regulations, and I find that the employment of these minors in a fish processing plant exposed them to hazards and continued for at least two years, a significant period of time. Finally, I have found that the Respondents, by allowing 17 minors to operate the forklift, heedlessly exposed them to a hazard which, in Marzullo's case, resulted in injury and death.