USDOL v. Tacoma Dodge, Inc., 1994-CLA-80, et al. (ALJ Dec. 15, 1999)

U.S. Department of Labor

Office of Administrative Law Judges 525 Vine Street, Suite 900 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Date Issued: December 15, 1999

Case Nos: 1994-CLA-80, 1994-CLA-88
   1994-CLA-91, 1994-CLA-112

In the Matter of

ADMINISTRATOR, WAGE AND HOUR DIVISION,
UNITED STATES DEPARTMENT OF LABOR,
    Plaintiff,

    v.

TACOMA DODGE, INC.,
BNS ENTERPRISES, INC., d/b/a ACURA OF BELLEVUE,
NORTH SEATTLE CHRYSLER PLYMOUTH, INC.,
THOMASON AUTO GROUP NORTH, INC., d/b/a THOMASON
FORD/TOYOTA OF KIRKLAND,
    Respondents.

   I issued a Decision and Order on April 30, 1998 pertaining to the above-named respondents and 19 other automobile/truck dealerships in the Puget Sound area of the western portion of Washington. All but one of the respondents (Seven Motors Corporation, Case Number 96-CLA-9) appealed that decision to the Administrative Review Board (Board). By Order dated November 25, 1998, the Board remanded the cases for further proceedings consistent with the Drive for Teen Employment Act, [Pub. L. 105-334, 112 Stat. 3137] which amended the Fair Labor Standards Act [29 U.S.C. § 216(e) (1994) & Supp. II (1996)], as of October 31, 1998.

   Following the receipt of the record from the Board, I issued an Order allowing counsel for the parties a reasonable period of time to confer for the purpose of discussing settlement of some or all of the cases in view of the above-cited amendment to the Fair Labor Standards Act (Act). I subsequently issued an Order extending the date for either settling the cases or submitting briefs on the issues remaining in dispute. On May 14, 1999, the plaintiff submitted a consolidated motion to dismiss 18 of the

remaining cases. Plaintiff also submitted in three of the above-listed cases motions for re-entry of order and in the remaining case involving BNS Enterprises, Inc., the plaintiff filed a motion for re-entry of order in part and motion to dismiss in part. I subsequently granted the consolidated motion to dismiss and thereby dismissed all of the cases other than the ones listed above. Thus, the remaining question to be resolved in this decision is how these respondents are affected by the Drive for Teen Employment Act.

   The findings of fact and conclusions of law as set forth in my original decision are adopted to the extent they are not inconsistent with the findings and conclusions made herein. References to ALJX, PX and RX pertain to exhibits of the administrative law judge, plaintiff and respondent, respectively. The transcript is cited as Tr. and by page number.

   As I indicated in the original decision, the respondents employed minors who were either 16 or 17 years of age at the pertinent time. Some of these minors drove the respondents' vehicles on public roads as a part of their jobs. None of the vehicles driven by these minors exceeded 6,000 pounds in gross weight and all were equipped with either a seatbelt or similar restraining device. The minors had completed a drivers' education class, they all held a valid State driver's license and had been instructed by their employers that seatbelts or similar restraining devices must be used when driving on public roads. Most of the driving by these minors was restricted to daylight hours. (Post-hearing Brief of Plaintiff, pp. 5-6; PX 10, 20; Tr. 169-70, 262).

   I also made the following findings with respect to the remaining respondents involved in this proceeding.

    As the name implies, Tacoma Dodge, Inc. (Tacoma) is an automobile dealership located in Tacoma, Washington. This business produced gross sales in excess of $30,000,000 in 1991 and $36,000,000 in 1992. Tacoma employed one minor from December 1, 1993 to January 1, 1994. (PX 10). The minor worked in lot clean-up, spending most of his time washing cars and preparing them for customers. (PX 9, 13). This work included driving vehicles on the public roads to a gasoline station about one mile away. (PX 10, 13). This employee, who worked after school during the winter and on Saturdays, would drive to the gasoline station about twice a night. (PX 10; Tr. 169-70).

          . . . .

    BNS Enterprises, Inc. (BNS) operates a retail and wholesale Acura dealership in Bellevue, Washington. This corporation employed 56 persons during the times pertinent to this case and had annual gross sales in 1991 and 1992 in the area of $30,000,000. (PX 19, 23). BNS employed five minors, two of whom were involved in driving on public roads for their employer, between October 1, 1991 and September 30, 1993. (PX 19). One minor worked as a wash and vacuum person in the service department, while the other served as a lot attendant. (PX 19). Although hired to wash and prepare cars, the lot attendant was also expected to provide courtesy transportation for customers, which involved driving them to home or work. (PX 20, 23; Tr. 261-62). This occurred about twice per week and on two occasions the driving was after dark. (PX 20; Tr. 262). The wash and vacuum person also transported customers on public roads and drove to pick up parts a few miles away from the dealership up to three times a day. (PX 20; Tr. 261). BNS expected the minors to provide customer transportation although not all of the minors employed did so and some did only on rare occasions. (PX 20; Tr. 262-63, 266).

    Between October 1, 1991 and September 30, 1993, North Seattle Chrysler Plymouth, Inc. (North Seattle) employed three minors, one of whom was involved in driving on public roads. (PX 28). Part of this minor's duties as a detailer involved driving off North Seattle's lot for about 1-1/2 blocks to a gas station. (PX 24-26; Tr. 290-91). This dealership's annual gross sales between 1990 and 1992 was about $25,000,000 each year and it employed about 50 persons. (PX 24).

          . . . .

    About 150 persons were employed by Thomason Auto Group North (Thomason) during the times involved in this case. This company operates a Ford and Toyota dealership in Kirkland, Washington. (PX 89, 91). Thomason had gross sales in excess of about $71,000,000 in 1991 and $82,000,000 in 1992. (PX 89). It employed six minors between October 1, 1991 and November 30, 1993 who were involved in driving the company's vehicles on public roads. (PX 89, 93). One of these minors worked as a service porter and drove once per day to a gasoline station and to shuttle customers. This employee was 16 years of age at the time. (PX 90, 93; Tr. 300). Another minor was a car washer who would drive at least once or twice per day on public roads to pick-up cars or to go to other lots or the body shop. (PX 90; Tr. 310). A third minor was employed as a parts runner who regularly drove on public roads to pick-up parts for Thomason. (PX 90; Tr. 317). The remaining three minors worked as lot attendants, one of whom was 16 years of age at the time of her driving. (PX 89, 93). One of these minors drove Thomason's vehicles off the lot on a regular basis to get gasoline or for other errands. (PX 90). The other two minors also drove the company's vehicles on the public roads as part of their lot attendant duties. (PX 90; Tr. 308, 309).

John Fraser, Acting Administrator, Wage and Hour Division, United States Department of Labor v. Cornforth-Campbell Motors, Inc., et al., Case Nos. 1994-CLA-73, et al. (ALJ Dec. & Order, Apr. 30, 1998).

   Following investigations by compliance officers of the Wage and Hour Division, U.S. Department of Labor, Seattle, Washington, the following civil money penalty assessments remain in dispute in these cases:

   In my original decision, I initially set forth under the Conclusions of Law section my analysis of the pertinent law as of the date of that decision. Following is that analysis.

    In order to protect the safety, health, and well-being of youthful workers, the Fair Labor Standards Act forbids the employment of minors in certain occupations the Secretary of Labor has found to be hazardous, as well as restricts the hours and times when minors may work. 12 U.S.C. §§ 203(l), 212(c); 29 C.F.R. § 570.52. One of the occupations the Secretary has found to be hazardous to minors under the age of eighteen is driving on the public roads. 29 C.F.R. § 570.52(a) [Hazardous Order 2]. However, there is an exception to this finding, allowing sixteen and seventeen year old minors to drive vehicles weighing under six thousand pounds and 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 further, that the vehicle is equipped with a seat belt or similar restraining device for the driver and for each helper, and the employer has instructed each minor that such belts or other devices must be used.

29 C.F.R. § 570.52(b)(1). A "driver" is "any individual who, in the course of employment, drives a motor vehicle at any time." 29 C.F.R. § 570.52(c)(2). "Incidental" and "occasional" are not defined in either the Act or the regulations.

John Fraser, Acting Administrator, Wage and Hour Division, United States Department of Labor v. Cornforth-Campbell Motors, Inc., et al., supra.

   In applying this analysis of the law to the facts involved in this case, I reached the following conclusions regarding the remaining respondents. I concluded the assessments against Tacoma and BNS were correct because these respondents violated the Act as each of the minors employed with them drove during non-daylight hours. I also found that the assessments against North Seattle and Thomason must be sustained because these respondents failed to prove that the driving by the minors on public roads was "occasional and incidental" so as to fall within the exception provided at 29 C.F.R. § 570.52(b)(2). Thus, I now must consider how the enactment of the Drive for Teen Employment Act affects the conclusions of law with respect to these four respondents.

   The October 31, 1998 amendment to Section 213(c) of the Fair Labor Standards Act added the following provisions as subparagraph (6) of that section of the Act.

(6) In the administration and enforcement of the child labor provisions of this act, employees who are under 17 years of age may not drive automobiles or trucks on public roadways. Employees who are 17 years of age may drive automobiles or trucks on public roadways only if-

    (A) such driving is restricted to daylight hours;

    (B) the employee holds a State license valid for the type of driving in the job performed and has no records of any moving violation at the time of hire;

    (C) the employee has successfully completed a State approved driver education course;

    (D) the automobile or truck is equipped with a seat belt for the driver and any passengers and the employee's employer has instructed the employee that the seat belts must be used when driving the automobile or truck;

    (E) the automobile or truck does not exceed 6,000 pounds of gross vehicle weight;

    (F) such driving does not involve-

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    (i) the towing of vehicles;

    (ii) route deliveries or route sales;

    (iii) the transportation for hire of property, goods, or passengers;

    (iv) urgent, time-sensitive deliveries;

    (v) more than two trips away from the primary place of employment in any single day for the purpose of delivering goods of the employee's employer to a customer (other than urgent, time-sensitive deliveries);

    (vi) more than two trips away from the primary place of employment in any single day for the purpose of transporting passengers (other than employees of the employer);

    (vii) transporting more than three passengers (including employees of the employer); or

    (viii) driving beyond a 30 mile radius from the employee's place of employment; and

(G) such driving is only occasional and incidental to the employee's employment.

For purposes of subparagraph (G), the term "occasional and incidental" is no more than one-third of an employee's worktime in any workday and no more than 20 percent of an employee's worktime in any workweek.

29 U.S.C. § 213(c)(6) (1998).

   This change in the law was made applicable to this proceeding because it also provided that the amendment "shall become effective on the date of the enactment of this Act [Oct. 31, 1998]" except that the definition of "the term occasional and incidental' shall also apply to any case, action, citation or appeal pending on the date of enactment of this Act [Oct. 31, 1998] unless such case, action, citation, or appeal involves property damage or personal injury." Pub. L. 105-334 § 2(b) (Oct. 31, 1998) 112 Stat. 3138. Since this case was on appeal to the Administrative Review Board at the time of the amendment, the definition of "occasional and incidental" applies to this proceeding and must be considered on remand.

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   I initially conclude that the amendment to the Act has no effect on the conclusions of law that I rendered with respect to Tacoma. As I found in the original decision, the minor who drove on public roads for this respondent did so during non-daylight hours and therefore the driving does not fall under the "occasional or incidental" exception. Thus, I find on remand of this case that Tacoma Dodge, Inc. violated the Act with respect to this minor and remains liable for the ,000.00 child labor violation assessment.

   The same rationale applies to one of the child labor violations pertaining to BNS. I found as a fact in the original decision that one of the minors involved in driving on public roads for this employer provided courtesy transportation for customers on two occasions during non-daylight hours. I also concluded in the original decision with respect to this company that the minor "who drove during non-daylight hours, even once, cannot" fall under the "occasional or incidental" exception. I therefore continue to find that BNS Enterprises, Inc. violated the Act with respect to this minor and remains liable for the ,000 child labor violation assessment pertaining to his driving. Since the plaintiff concedes in the motion for re-entry of order in part and motion to dismiss in part that "the evidence of record with respect to the remaining minor who drove on public roads for BNS Enterprises, Inc. fails to establish any violation under the Act under the definition of occasional and incidental' contained in the October 31, 1998 amendment to the Act", I grant the plaintiff's motion and dismiss the ,000 civil money penalty assessment pertaining to that minor. Thus, this respondent remains liable for civil money penalties totalling ,000.00.

   The remaining assessments against North Seattle and Thomason involve the question of whether the driving on public roads by the employed minors falls within the "occasional and incidental" exception. North Seattle employed one minor involved in driving on public roads as a part of his job, while Thomason employed six minors in such a capacity. Thus, the definition of "occasional and incidental" as contained in subparagraph 6(G) of the 1998 amendments to Section 213 of the Act is applicable to some of the driving of these minors.

   I concluded in my original decision that the evidence offered on behalf of North Seattle, as well as that pertaining to the driving of most of the minors involved in the 23 cases, did not prove the driving fell within the "occasional and incidental" exception. My conclusions in this regard were based on case law because "occasional and incidental" was not defined in the Act or regulations. See 29 U.S.C. § 213(c) (1997) and 29 C.F.R. § 570.52(b)(1) (1997). Since the minor involved in the child labor assessment against North Seattle was 17 years of age at the time of his driving, the 1998 amendment to the Act does apply to the question of whether this minor's driving qualifies as "occasional and incidental" to this employee's employment. 12 U.S.C. § 213(6)(G). According to the amendment, if such driving involved "more than one-third of the employee's worktime in any workday and no more than 20 percent of the employee's worktime in any workweek", then such driving meets the requirement of the Act, as amended.

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   I noted in my original decision that the respondent offered little evidence to prove the driving performed by the minors they employed fits within the "occasional and incidental" exception. The only evidence they offered in this regard consisted of the respondents' answers to plaintiff's interrogatories which I found to be "essentially identical, vague and self-serving." John Fraser, Acting Administrator, Wage and Hour Division, United States Department of Labor v. Cornforth-Campbell Motors, Inc., et al., supra. Although respondent had the burden of proving the driving of the minors fits within the exception, I found the evidence developed by the plaintiff's compliance officers and presented as a part of the plaintiff's case represented the best evidence in the record regarding the extent of the minors' driving. However, I found such evidence was not sufficient to meet the respondents' burden of proving the driving by the minors met the exception to the hazardous order in that it was both "occasional and incidental" under the definition applicable at the time of that decision.

   I have again considered the evidence offered regarding the driving by the one minor employed by North Seattle which resulted in the ,000.00 civil money penalty assessment for a child labor violation. (PX 24-28; Tr. 290-291). The evidence proves the minor drove on public roads to a gas station 1-1/2 blocks away from his employer's place of business and that it occurred at least once a week. (Tr. 291). However, the evidence does not provide the specificity needed to prove that such driving amounted to "no more than one-third of the employee's work time in any workday and no more than 20 percent of the employee's work time in any workweek." 12 U.S.C. § 213(c)(6). Thus, I agree with the plaintiff that the evidence in the record fails to meet this respondent's "burden of proof as to its entitlement to the exemption from the child labor provisions . . . under the definition of occasional and incidental' . . . of the Drive for Teen Employment Act." Since this respondent did not provide sufficient evidence at the hearing to meet its burden of proof or request the reopening of the record to offer such proof following the above-discussed amendment to the Act, I find that North Seattle Chrysler Plymouth, Inc. remains liable for the ,000.00 assessment pertaining to the child labor violation relating to one 17 year old minor for the time period of October 1, 1991 through September 30, 1993.

   The assessments against Thomason involve child labor violations relating to minors who were 16 and 17 years of age at the time of their driving on public roads. With respect to the civil money penalty assessments totalling $2,400.00 for the child labor violations involving the driving by the two 16 year old minors, I find the amendment to Section 213(c) of the Act has no effect on my original conclusions. The definition of "occasional and incidental" as provided in that amendment only applies to employees who are 17 years of age. Thus, my original analysis with respect to these two employees is not affected by the change in the law and I find on the basis of the evidence submitted at the hearing that this respondent failed to meet its burden of proving that the driving by these minors fits within the "occasional and incidental" exemption provided in 29 C.F.R. § 570.52(b)(1) (1997) and the case law controlling at the time of my original decision. I therefore sustain the plaintiff's assessment of the civil money penalties applicable to these two child labor violations amounting to $2,400.00.

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   The remaining child labor violations pertaining to Thomason involve driving on public roads by four of Thomason's 17 year old employed minors resulting in an assessment for each violation of ,000.00 or a total of $4,000.00. Plaintiff argues in his motion for re-entry of order that the evidence in the record fails to meet this respondent's burden of proof as to its entitlement to the exemption from the child labor provisions of Section 13(c) of the Act as afforded by the "occasional and incidental" exemption definition set forth in the Drive for Teen Employment Act. After reconsidering the evidence applicable to this respondent, I agree with the plaintiff. (PX 89-93; Tr. 300-311). The evidence offered at the hearing simply is not specific enough to prove that the driving by these four minors consisted of "no more than one-third of" each of the employees' "worktime in any workday and no more than 20 percent of" each of the employees' "worktime in any workweek." Moreover, this respondent also did not request the reopening of the record to submit such evidence. Therefore, this respondent has failed to meet its burden of proof with respect to the child labor violations pertaining to the four 17 year old minors who drove on public roads in the performance of their jobs for Thomason. I therefore sustain the civil money penalties applicable to these violations amounting to $4,000.00. Thus, Thomason Auto Group North, Inc., d/b/a Thomason Ford/Toyota of Kirkland, remains liable for the civil money penalty assessments totaling $6,400.00 for the six child labor violations discussed above.

Conclusion

   In conclusion, I find on remand that these four respondents violated the Act by allowing minors to drive dealer-owned vehicles on public roads and that such driving does not fall within the "occasional and incidental" driving exception provided either in 29 C.F.R. § 570.52(b)(1) (1997) or the amendment to Section 213(c) of the Act by virtue of the enactment of the Drive for Teen Employment Act. The specific amount owed by each respondent is addressed in separate orders.

       DONALD W. MOSSER
       Administrative Law Judge