ARB CASE NO. 03-025
ALJ CASE NO. 01-CLA-034
DATE: June 30, 2004
In the Matter of:
ADMINISTRATOR,
WAGE AND HOUR DIVISION,
U. S. DEPARTMENT OF LABOR,
PLAINTIFF,
v.
FISHERMAN'S FLEET, INC. d/b/a
MAPLEWOOD FISH MARKET, and
MICHAEL GRAFFEO,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Plaintiff:
Claire Brady White, Esq., Paul L. Frieden, Esq., Steven J. Mandel, Esq.,
U.S. Department of Labor, Washington, D.C.
For the Respondants:
Keith L. Miller, Esq., Boston, Massachusetts.
FINAL DECISION AND ORDER
Pending before this Board is the Wage and Hour Administrator's (Administrator) petition for review of an Administrative Law Judge's Recommended Decision and Order (R. D. & O.) finding that Fisherman's Fleet (FFI or Company) violated the child labor provisions of the Fair Labor Standards Act (FLSA), as amended, 29 U.S.C.A. §§ 212(c) and 216(e) (West 1998), and the implementing regulations at 29 C.F.R. Parts 570, 579 and 580 (2003), and reducing by twenty-five per cent the civil money penalty imposed on the Company. We affirm the ALJ's finding that FFI violated the child labor provisions of the FLSA and reverse the twenty-five per cent reduction in penalties.
1 Documentary evidence will be referred to herein as "Sec. Exh." for an exhibit offered by the Secretary, and "Resp. Exh." for an exhibit offered by FFI. References to the hearing transcript are designated as "Tr."
2 During investigations under the child labor provisions of the FLSA, the Administrator audits a company's employment practices for the two-year period immediately preceding the first visit of the investigator. Tr. 598-599.
3 The ALJ reduced the penalty because he found that the Admnistrator's evidence was insufficient to prove all of its allegations. Specifically, the ALJ found that of the 14 minors alleged to have worked excessive hours, the evidence was adequate with regard to only two of them, and that of the 19 minors alleged to have driven the forklift, the evidence was adequate with regard to 18 of them. R. D. & O. at 14.
4See Section 54 WH-266-14, Vol. III, Wage & Hour Field Operations Handbook 7/9/94.
5 Over the two-year investigation period, the Administrator determined that FFI had hired a total of 31 minors. R. D. & O. at 19.
6 To the extent that the ALJ was influenced to reduce the penalty because it may have been the largest, we believe he erred. The regulations do not include this as a factor to be considered when determining the appropriateness of a penalty. See 29 C.F.R. § 579.5.
7 Mr. Graffeo testified that he did not know where he got the information that minors needed working papers. Tr. at 65.