DATE: December 3, 1997

CASE NO: 93-CLA-00090

In the Matter of

JOHN R. FRASER, Acting Administrator,
Wage and Hour Division, Employment
Standards Administration, U. S.
DEPARTMENT OF LABOR
    Plaintiff

v.

KILMER'S IGA MARKET, INCORPORATED
    Respondent

   This case arises out of the assessment of a civil money penalty against the Respondent under section 16(e) of the Fair Labor Standards Act of 1938, as amended (FLSA), 29 U.S.C. 216(e), and the Department of Labor's implementing Regulations, 29 C.F.R. Parts 579 and 580.

   On June 3, 1991, the District Director of the Department of Labor's Employment Standards Administration, Wage and Hour Division notified the Respondent Kilmer's IGA Market, Inc. that a civil money penalty in the amount of $12,250.00 had been assessed against the Respondent pursuant to section 16(e) of the FLSA and Parts 579 and 580 of the Regulations as a result of the Respondent's alleged employment of nine minors in violation of the child labor provisions of section 12 of the FLSA. On June 27, 1991, the Respondent filed a timely exception to the assessment, and the matter was referred on April 15, 1993 to the Office of Administrative Law Judges for a formal hearing.

   On June 17, 1997, I issued a notice of hearing, scheduling a hearing for August 20-21, 1997 in Poughkeepsie, New York. On July 22, 1997, counsel for the Plaintiff moved for a 90-day continuance based on uncertainty as to the present whereabouts of the Respondent and the status of its legal representation in this matter. By order issued on August 7, 1997, I rescheduled the hearing to November 24-25, 1997. On October 22, 1997, the Plaintiff filed a Motion for Default Judgement, alleging that the Respondent has abandoned its request for hearing and defaulted pursuant to 29 C.F.R. §§ 18.5(b) and 18.39(b) because: (1) the principal of the Respondent, David Kilmer, could not be located as he has apparently sold the business involved in the matter and moved without leaving a forwarding address; and (2) the

attorney for the Respondent has stated that he has no authority to represent the Respondent who has not informed the Court of the status of its representation. By order issued on October 29, 1997, I stated,

The abandonment and default judgement provisions cited by the Plaintiff are applicable to situations where a respondent fails to file an answer (§18.5(b)) or fails without good cause to appear at the time and place fixed for a hearing (§18.39(b)). The Plaintiff has not alleged, nor does it appear, that Respondent has failed to file an answer, and the Respondent has not to date failed to appear at the time and place fixed for a hearing which is currently scheduled for November 24-25, 1997 in Poughkeepsie, New York. However, the notice of hearing sent to David Kilmer at his address of record was returned by the Postal Service with a notation that the forwarding address had expired. And, two attorneys who had previously represented the Respondent have submitted letters stating that they no longer represent the Respondent which has gone out of business, that they have no knowledge of David Kilmer's whereabouts and that they will not appear at any hearing in this matter. In these circumstances, it appears that neither the Respondent nor any representative intends to appear at the hearing scheduled for November 24-25, 1997.

Based on these circumstances, I allowed the Respondent 10 days from the date of the order to notify me in writing as to whether it intended to appear at the hearing scheduled for November 24-25, 1997. I further stated that failure to respond to this order would be treated as an abandonment of the Respondent's request for hearing under 20 C.F.R. §18.39(b)¹ and grounds for issuance of decision by default pursuant to 20 C.F.R. §18.5(b).² When no response to this order was received,³ I issued an order on November 18, 1997, finding that the Respondent had abandoned its request for a hearing and stating that a decision by default would be issued as soon as practicable.

   In view of the Respondent's abandonment of its hearing request, I find pursuant to section 18.5(b) of the Regulations that the Respondent employed minors in violation of the child labor provisions of the FLSA and implementing regulations as alleged in the District Director's notice of assessment dated June 13, 1991. I further find that, as a result of these violations, the Respondent is liable for a civil money penalty in the amount of $12,250.00. Accordingly, it is hereby ORDERED that the Respondent shall pay the assessment by certified check or money order within thirty (30) days to the District Director, Wage and Hour Division, U.S. Department of Labor, 26 Federal Plaza - Room 3838, New York, NY 10278.

      Daniel F. Sutton
      Administrative Law Judge

Issued: December 3, 1997
Camden, New Jersey

¹ Section 18.39(b), in pertinent part, states that a party shall be deemed to have abandoned a request for a hearing if neither the party nor his or her representative appears for the hearing and does not show good cause prior to the hearing as to why neither the party nor his or her representative could appear. Section 18.39(b) further states that a default decision under section 18.5(b) may be entered against any party who fails, without good cause, to appear at a hearing.

²Section 18.5(b) authorizes an administrative law judge, upon default by a respondent, to "find the facts as alleged in the complaint and to enter an initial or final decision containing such findings, appropriate conclusions, and order."

³ The notice sent via certified mail to David Kilmer for the Respondent at his last known address was returned to this office as undeliverable due to expiration of the forwarding address. One of the two attorneys who had previously represented the Respondent submitted a letter dated October 27, 1997 in which he reiterated that he had never represented the Respondent in connection with the instant matter.