DATE ISSUED: November 29, 1994
CASE NO: 93-CLA-82
RICHARD A. McMAHON, JR.,[1]
DEPUTY REGIONAL ADMINISTRATOR,
WAGE AND HOUR DIVISION,
Complainant,
v.
BLACKHAWK STATE BANK,
Respondent.
APPEARANCES:
Karen E. Mock, Esquire
United States Department of Labor
Office of the Solicitor
230 S. Dearborn Street
Chicago, IL 60604
For the complainant
W. Gerard Huiskamp, pro se
John R. Huiskamp, pro se
Blackhawk State Bank
P.O. Box 1100
Milan, IL 61264
For the respondent
BEFORE: DONALD W. MOSSER
Administrative Law Judge
DECISION AND ORDER
This action arises from an Order of Reference filed by the Deputy Regional
Administrator, Employment Standards Administration, Wage and Hour Division,
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United States Department of Labor alleging that Blackhawk State Bank
[Blackhawk] violated Section 12 of the Fair Labor Standards Act of 1938, as
amended, 29 U.S.C. Sections 201 et seq., [the Act], and the applicable
regulations issued thereunder at 29 C.F.R. Part 570. The Secretary of Labor
alleges through his deputy regional administrator that Blackhawk violated the Act
principally by engaging in underage employment in a hazardous occupation. Com-
plainant further contends the respondent's violations justify the imposition of a
civil money penalty against Blackhawk pursuant to Section 16(e) of the Act.
Blackhawk requested a formal hearing concerning the matters raised in the
Order of Reference. A hearing was held on April 14, 1994 in Davenport, Iowa,
during which the parties were afforded the opportunity to present evidence. Both
parties filed post-hearing briefs.
The findings of fact and conclusions of law set forth in this decision are
based on a thorough review of the evidentiary record in light of the arguments
advanced by the parties. The exhibits of the administrative law judge and
Blackhawk State Bank are referred to as ALJX and RX, respectively. The
transcript of the hearing is cited as Tr. and by page number.
ISSUES
The issues to be decided in this proceeding are:
1. whether Blackhawk State Bank violated the Act by engaging in oppressive
child labor; and,
2. whether a civil money penalty should be imposed on the respondent.
FINDINGS OF FACT
Blackhawk State Bank has five locations in the Quad Cities area, the main
office in Milan, Illinois, and branch offices in Milan, Rock Island, Moline and Coal
Valley, Illinois. (Tr. 21). Blackhawk is an entity covered by the Fair Labor
Standards Act with no prior history of violations of the Fair Labor Standards
Act. (Tr. 18). Three of the four key individuals involved in this proceeding are W.
Gerard Huiskamp, R. Eugene McGonigle, and Kathy Fisher. Mr. Huiskamp, who is
president and chairman of the board of Blackhawk, is in charge of running the bank
and all of its departments. (Tr. 119). Mr. McGonigle, is vice-president and his
responsibilities include overseeing operations in the bookkeeping department. (Tr.
111). Ms. Fisher was supervisor of the bank's bookkeeping department during the
pertinent time period. (Tr. 87). None of these persons was aware in August 1988 of
the pertinent child labor law restrictions on driving automobiles by persons under
the age of eighteen years. (Tr. 92, 117, 127-128).
The fourth person on whom this case principally focuses is Cynthia Boniger.
Ms. Boniger was born on July 26, 1971 and began working for Blackhawk on August
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9, 1988 through a cooperative education program at Orion High School. The
program entailed going to school in the mornings, then performing on-the-job
training at Blackhawk during most of the afternoons and on Saturday. (Tr. 20-21).
She worked in the bookkeeping department for about six months, then went to teller
training. (Tr. 24). Ms. Boniger's duties in the bookkeeping department included filing
checks, processing stop payment requests and overdrafts and running proof. (Tr.
24).
The bank's proof work involves validating deposits, processing checks
through a proof machine and coding them. This work is generated at each of
Blackhawk's branch locations and is picked up two or three times per day, usually
by the bookkeeping personnel and brought by automobile to the main office for
processing. Bookkeepers also drive to the post office to collect or deposit mail.
(Tr. 27, 28). Ms. Boniger was among the bookkeeping staff whom would drive to the
other branches and to the post office.
Four different cars were used by bank employees when they traveled
between branches or to the post office. None of the cars weighed more than 6000
pounds. (Tr. 19). Ms. Boniger had a valid driver's license at all times she worked
for the bank and had completed an approved driver's education course. (Tr. 30).
All vehicles owned and used by the bank employees were equipped with seat belts,
and Ms. Boniger always wore her seat belt when she drove, which was required by
state law. Her supervisor, Kathy Fisher, instructed Ms. Boniger and the other
employees that they must wear safety belts while driving, although Ms. Boniger
could not recall the instruction. (Tr. 87-88, 31). Ms. Boniger never drove any of
the bank vehicles after daylight.
The bank maintains logs to record the use of its vehicles. (Tr. 32). The log
sheet is kept on a clipboard in each automobile. Either the driver or the passenger
records the driver's identity, number of miles driven and the purpose of the trip.
(Tr. 46). There are occasions where some of the bookkeeping personnel make more
than one trip per day to the other branches or post office. (Tr. 38). Employees
volunteer for this duty or are assigned this duty randomly. However, there is no
schedule as to whom is to make these trips. (Tr. 46).
Ms. Boniger considered her driving for work to be a minor part of her job,
based on the number of her working hours and the time that she spent within the
bookkeeping department. (Tr. 54-55). She worked approximately 1,400 hours from
August of 1988 through July of 1989, of which 1.16 percent, or about 16 hours,
involved driving to the branch offices or the post office. (Tr. 135-136; RX 39).
During the period, she drove an average of 1.7 days per week with the trips
averaging 12 minutes of driving time. (RX 9-20, 39). She drove at least the
following number of times during the months in which she was 17 years of age:
August 1988 - 11 times
September 1988 - 8 times
October 1988 - 21 times
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November 1988 - 16 times
December 1988 - 15 times
January 1989 - 13 times
February 1989 - 13 times
March 1989 - 2 times
June 1989 - 5 times
July 1989 - 3 times
(RX 9, 10; Tr. 36-39).
A compliance officer of the U.S. Department of Labor conducted a wage/hour
investigation of Blackhawk in 1990. She determined that the bank allowed four
employees, who were minors, to operate motor vehicles in violation of Section 16(a)
of the Act. A total civil money penalty of $500.00 was assessed against the bank
for the alleged violations.[2] Blackhawk timely filed an exception to the
complainant's assessment and requested a formal hearing. (ALJX 1; Tr. 58-76).
CONCLUSIONS OF LAW
Section 7(c) of the Administrative Procedure Act provides, "[e]xcept as
provided by statute, the proponent of a rule or order has the burden of proof."
See 5 U.S.C. § 556(d). Because I do not find any allocation in the
Act or its implementing regulations to the contrary, the Department of Labor has
the burden of proving that Blackhawk engaged in oppressive child labor. The
traditional standard of proof required in administrative proceedings is proof by a
preponderance of the evidence. Sea Island Broadcasting Corp. v. FCC,
627 F.2d 240 (D.C. Cir. 1980), cert. denied, 449 U.S. 834 (1980); Beneder
v. Clark, 744 F.2d 1424 (10th Cir. 1984). However, it is important to remember
that the Fair Labor Standards Act is to be liberally construed because it is
remedial in nature. Lenroot v. Western Union Telephone Co., 52 F.Supp.
142 (S.D.N.Y. 1943), aff'd, 141 F.2d 400 (2nd Cir. 1944), rev'd on
other grounds, 323 U.S. 490 (1945).
The purpose of the child labor provisions of the Act is the protection of
"the safety, health, well-being, and opportunities for schooling of youthful
workers." 29 C.F.R. § 570.101. Section 12(c) of the Act provides, "[n]o
employer shall employ any oppressive child labor in commerce or in the production
of goods for commerce." 29 U.S.C. § 212(c). Section 3(1) of the Act defines
"oppressive child labor" 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 to be particularly
hazardous for the employment of children between such ages or detrimental to their
health and well-being." The Secretary has, by regulation, proscribed employment
of minors 16 and 17 years of age in the occupation of motor vehicle driver.
See 29 C.F.R. § 570.52.
Section 570.52(a) of the regulations pertinently provides in part that
occupational driving of a motor vehicle by a minor between 16 and 18 years of age
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constitutes hazardous employment. The term "driver" is defined as "any individu-
al who, in the course of employment, drives a motor vehicle at any time." 29 C.F.R.
§ 570.52(c)(2). Blackhawk concedes that Ms. Boniger qualifies as a driver,
but asserts that she falls within the Section 570.52(b) exemption for incidental and
occasional driving. That section essentially explains that the hazardous employ-
ment provisions regarding the driving of automobiles by a minor "shall not apply
to the operation of automobiles. . . not exceeding 6,000 pounds gross vehicle weight
if such driving is restricted to daylight hours; provided, such operation
is only occasional and incidental to the minor's employment; that the minor holds a
State license valid for the type of driving involved in the job performed and has
completed a State approved driver education course; and provided fur-
ther, that the vehicle is equipped with a seat belt or similar restraining device
for the driver . . . and the employer has instructed each minor that such belts or
other devices must be used." 29 C.F.R. § 570.52(b)(1).
In this case, complainant concedes that the automobiles involved did not
exceed 6,000 pounds, the driving was restricted to daylight hours, the minor holds a
valid license, and she has completed a state approved driver education course.
The Department of Labor does not concede that the employer instructed Ms. Boniger
that seat belts must be used, but agrees that Ms. Boniger did use the seat belts in
compliance with state law.[3] However, the plaintiff's main contention is that Ms.
Boniger's driving was not incidental and occasional.
Blackhawk offered credible evidence indicating Ms. Boniger was instructed to
wear her seat belt when driving a bank-owned vehicle. Ms. Boniger could not
specifically remember being so instructed, but she also could not say that she was
not so instructed. Since complainant has the burden of proof under the Administra-
tive Procedure Act, I conclude that it has not been established that Ms. Boniger
was not instructed about seat belt use.
Both parties have cited the case of Usery v. Tooele City Corp., 23
WH Cases 116 (1977), in support of their positions regarding the terms "incidental"
and "occasional." In Tooele City, the minors in question were employed by
the Parks and Recreation Department in Tooele City, Utah. Their primary duty
was described as maintaining the parks, ballfields, and other areas operated by
that department. The minors testified in that case to having driven at least three
to four times per week, for periods ranging from half an hour to two hours,
depending on the day. Id.
The administrative law judge in Tooele City examined the words
"incidental" and "occasional" separately. In defining "incidental", the judge first
used a two-prong approach. He initially examined the primary duties of the
minors, and concluded that "incidental" meant "the primary duty of the minor must
be other than driving, and that such driving must be minor, of secondary importance,
and secondary and subordinate to their primary duty." Id. The second
prong of the analysis focused on the relative amounts of time spent driving,
compared to the other duties of the minor's employment. The administrative law
judge found that
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where the amount of time spent driving "was a very small percentage of their total
working time, the great majority of their time having been devoted to their primary
and principal duty . . ., their driving was incidental." Id.
The testimony before me proves Ms. Boniger's primary duty was bookkeeping.
The driving involved in her job was clearly of secondary importance and subor-
dinate to the primary duty of bookkeeping. Additionally, the amount of time Ms.
Boniger spent driving accounted for a very small percentage of her total working
time (1.16% ). I therefore find that the driving engaged in by Ms. Boniger in her
employment for Blackhawk was incidental.
Many courts have been forced to fall back to the dictionary definitions of
the word "occasional" for guidance. See e.g., Bethke v. Edison Export
Inc., 459 F.Supp. 1374 (D.Colo. 1978); American Family Mutual Insurance
Co. v. Richardson, 517 F.Supp. 125 (E.D.Mo. 1981). In Tooele City,
however, the administrative law judge found this approach to be unenlightening and
unhelpful. That judge determined that the frequency of the driving was the key as
to whether or not that part of the minor's job could be considered occasional. The
judge concluded that "[e]ven driving 3 to 4 times per week is sufficient to remove
the activity from one that occurs only (occasionally)." Id.
In this case, there were no regular driving patterns by Ms. Boniger. None of
the bookkeeping employees had a schedule as to when they would drive to the other
branches and post office. Employees either volunteered for this duty or were
assigned this duty randomly. Ms. Boniger's driving varied from month to month, but
could not even be considered as regular as the driving of the minors involved in the
Tooele City case.
Complainant argues, based on the testimony of the compliance officer, that
operating a motor vehicle is "incidental and occasional" if it is done in emergency
situations, and is not part of someone's assigned duties. (Tr. 62). Such a reading is
not called for by the Act or regulations. I find that a reasonable interpretation
of the word "occasional" in the regulations is not limited to emergency situations.
Based on the testimony and evidence in the record, I find that Ms. Boniger's driving
was at a frequency where it should be classified as occasional. She did not drive
as often as the minors in the Tooele City case. I reiterate that I found
that she averaged only 1.7 days of driving per week, and her trips averaged less
than twelve minutes of driving per trip. Her total hours driving were 1.16% of
her total hours worked. I find that this amount of driving is occasional.
Blackhawk has established that it falls within the exemption provided by 29 C.F.R.
§ 570.52(b)(1).
Assuming arguendo that I had found a violation of the Act, I would
find no need to assess a civil money penalty. The regulations at 29 C.F.R. §
579.5 provide:
(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 be further determined, where appropriate,
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(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 and 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.
The Secretary of Labor recently addressed the issue of "de minimis"
violations under the Act. Echaveste v. Horizon Publishers and Distribu-
tors, Case No. 90-CLA-29, Sec'y Decision (May 11, 1994), aff'd on
recon. (July 21, 1994). He noted that 'de minimis' is a
short hand way to express the Latin maxim "de minimis non curat lex"--"the law
does not care for, or take notice of, very small or trifling matters." BLACK'S
LAW DICTIONARY 388 (5th ed. 1979). I believe such approach should be
taken in this case because Ms. Boniger's driving was not regular or frequent. Also,
Blackhawk has no history of prior child labor violations and has given credible
assurance of future compliance. I therefore find that a civil penalty is unneces-
sary to achieve the objectives of the Act.
I finally note in this regard that none of the bank's officials was aware of
the prohibition on the driving by minors, but when they were made aware of the
violation they took immediate steps to correct it. Mr. Huiskamp made clear at the
hearing that as a former teacher of American History, he is aware of the serious-
ness of child labor violations. I do not doubt the sincerity of his abhorrence of
child labor violations and his willingness to take whatever steps are necessary to
ensure that Blackhawk stays clear from any child labor violations.
In conclusion, I find that Blackhawk State Bank did not violate the child
labor provisions of the Fair Labor Standards Act by engaging in oppressive child
labor. The activities of the minor involved in this case fall within the exemption
provided by 29 C.F.R. § 570.52(b)(1) for incidental and occasional driving.
If I had found that a violation occurred, I would conclude that Blackhawk should
not be subject to a civil money penalty because of the "de minimis" nature of the
violations.
ORDER
For the above-stated reasons, IT IS HEREBY ORDERED that the determi-
nation of the Deputy Regional Administrator of the Wage and Hour Division is
reversed.
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______________________________
DONALD W. MOSSER
Administrative Law Judge
NOTICE OF APPEAL RIGHTS. Pursuant to 29 C.F.R. § 580.13,
any party dissatisfied with this Decision and Order may appeal it to the Secre-
tary of Labor within 30 days of the date of this decision, by filing a notice of
appeal with the Secretary of Labor, U.S. Department of Labor, Washington, D.C.
20210. A copy of the notice of appeal must be served on all parties to this
Decision and Order and on the Chief Administrative Law Judge, U.S. Department of
Labor, 800 K Street, N.W., Suite 400, Washington, D.C. 20001-8002. If no timely
appeal is filed, this Decision and Order shall be deemed the final agency action.
[ENDNOTES]
[1] Caption is corrected to conform with the Order of Reference and 29 C.F.R.
§ 580.10.
[2] It is alleged in the Order of Reference that a civil money penalty of $500.00
was being assessed against Blackhawk for child labor violations involving four
minors. (ALJX 1). However, the parties agreed to submit evidence pertaining only
to Ms. Boniger because her involvement in the questioned activities was greater
than that of the other three employees. The parties essentially agreed that my
conclusions regarding Ms. Boniger would be controlling for purposes of assessing
any civil money penalty in this case. (Tr. 16-18).
[3] Complainant's counsel noted in her brief that case law supports this seat belt
requirement for the time pertinent to this case.
