Administrator v. Horizon Publishers & Distributors, 90-CLA-29 (Sec'y May 11, 1994)

May 9, 2009

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Administrator, Wage and Hour Division v. Horizon Publishers & Distributors, 90-CLA-29 (Sec'y May 11, 1994)

U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: May 11, 1994
CASE NO. 90-CLA-29

IN THE MATTER OF

MARIA ECHAVESTE,¹
ADMINISTRATOR, WAGE AND HOUR
DIVISION,
PLAINTIFF,

HORIZON PUBLISHERS & DISTRIBUTORS,
DEFENDANT.

BEFORE: THE SECRETARY OF LABOR

FINAL DECISION AND ORDER

The captioned case is before me for review pursuant to the oppressive child labor provisions (Sections 12 and 16) of the Fair Labor Standards Act of 1938, as amended (FLSA), 29 U.S.C. §§ 212 and 216(e) (1988), and the implementing regulations. 29 C.F.R. Parts 579 and 580 (1991).

Horizon Publishers and Distributors ("Horizon") is a job printer and manufactures books and sewn objects, such as bible and music covers, which are sold interstate. Administrative Law Judge's Exhibit ("ALJX") 7, p. 3; ALJ's Decision and Order ("D. and O.") at 2. It is a small, closely held corporation, with approximately 35 employees. D. and O. at 8. In 1987 and 1988, the years in question, Horizon had net sales of approximately $750,000.00. Id. at 2. An investigator with the Wage and Hour Division of the Employment Standards Administration conducted an inspection of Horizon's facility in 1988. D. and O. at 7. Based upon records made available during and after that inspection, the Wage and Hour Area Director notified Duane Crowther, President of Horizon, that it had been found in violation of the Fair Labor Standards Act for engaging in oppressive child labor. ALJX 1. It was alleged that Horizon had employed 12 children under the age of 14, primarily to stuff

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envelopes for Horizon mailings. Id.; D. and O. at 3. The Area Director assessed a civil money penalty of ,840.00. Horizon appearing pro se, requested a hearing, which was held before a Department of Labor ALJ. D. and O. at 2.

On March 26, 1992, the ALJ issued his decision and order, finding that Horizon had violated Section 12 and ordering it to pay a civil money penalty of ,840.00. D. and O. at 16-17. Horizon (again Pro se) appealed that decision, arguing that the ALJ had "ignored the cases and principles cited for the defense," and as a result had erroneously held that the children in question were employees of Horizon and not independent contractors. Letter of Appeal dated April 24, 1992 ("Letter"), at 1. Further, Horizon argues that the ALJ erred in holding that Horizon's violations were not de minimis, that Horizon had not made credible assurances of future compliance, and that civil money penalties are necessary in this case to achieve the Act's objectives. Id. at 2. For the reasons which I articulate below, I affirm the ALJ's ruling that the children in question were employees of Horizon within the meaning of the Fair Labor Standards Act, and therefore affirm his holding that Horizon violated the oppressive child labor provision of the Act. However, because I have determined that the violations were de minimis, that Horizon has made credible assurances of future compliance with the FLSA, and that a civil money penalty is not necessary to achieve the FLSA's objectives, I reverse the ALJ's order that a penalty be paid.

The relevant facts are either uncontroverted or were found by the ALJ and are supported by substantial evidence in the record. Horizon paid 12 children under the age of 14 (sometimes collectively referred to as "the children") to perform certain menial tasks for Horizon.² D. and O. at 3-7. The major activity involved stuffing about 17,000 envelopes for a mailing. Id. at 3. This task was performed by four Jones children: Cheryl (age 10), Eric (age 9), Nathan (age 12), and Randy Jones (age 13), and two of their friends--Corinne Gubler (age 11) and Kory Merrill (age 11). Id. The bulk of the work on this mailing was completed at the Jones' home. Id. at 4. The project involved taking two pieces of folded paper, stuffing them in an envelope, affixing a pre-printed address label, and stacking the envelopes in boxes. Id. Arrangements for this project were made by the mother of the Jones children and Mr. Crowther. Id. at 3. Mr. Crowther dropped off the mailings and envelopes and picked up the completed work. Id. at 4. The children were paid one-half cent for each envelope stuffed. Id. Corinne Gubler and Kory Merrill heard about the project and asked if they could participate. Id. at 3. The children completed this particular envelope-stuffing project over spring break in 1988. Id. at 4. They were not required to work set hours, or to complete a specified number of envelopes a day. Id. The children sometimes watched television and ate snacks while they worked, and on one occasion stuffed envelopes into the night as part of a slumber party. Id.

Several children also did miscellaneous stuffing and labeling projects at the Horizon plant (Kim Adams (age 13), Mikel Birch (age 12), Scott Endrizzi (age 11), Kristen Isaac (age 12), Heather Kinnear (age 13), Heidi Kocherhans (age 13), Kory Merrill, Corinne Gubler, and Cheryl, Eric, and Nathan Jones). Id. at 5-6. Various children also worked on other mailing projects at the Crowther's house (Kory Merrill, Heidi Kocherhans, Corinne Gubler, Kristen Isaac, and Cheryl, Nathan, and Randy Jones). Id. at 5. The

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children were paid by the hour for these projects. Id. They did not have set hours and usually worked after school. Id. They were not supervised by an adult and either knew how to do the projects from previous projects or were taught by each other. Id.

Finally, Kristen Isaac also cut zipper strips and glued them on bible cases. Id. at 6. She did this work at home, daily after school and in the summers. Id. She was paid four cents per zipper.

It was stipulated that the income received from Horizon by the children in 1987 and 1988 was as follows: Kim Adams, $8.41; Mikel Birch, $34.98; Scott Endrizzi, $10.25; Corinne Gubler, $26.19; Kristen Isaac, $94.92; Cheryl Jones, $36.14; Eric Jones, $35.27; Nathan Jones, $24.64; Randy Jones, .50; Heather Kinnear, $5.25; Heidi Kocherhans, $9.21; and Kory Merrill, $29.52. ALJX-7 at 4-5; T. 15.

Although none of the children performed similar work for other companies, they all engaged in other money-making activities, including working on paper routes, picking vegetables, mowing lawns, babysitting, pet care, house painting, and refereeing sporting events. D. and O. at 7.

The Fair Labor Standards Act forbids enterprises engaged in commerce to employ "oppressive child labor." 29 U.S.C. § 212(c) (1988). "Oppressive child labor" includes ". . . a condition of employment under which . . . any employee under the age of sixteen years is employed by an employer . . . ." 29 U.S.C. § 203(1) (1988). Although there are many regulatory exceptions to the prohibition against children under the age of 16 working, by regulation the Secretary of Labor has forbidden most employment of children under the age of 14. 29 C.F.R.

§§ 570.117-570.126 (1993). Before the ALJ, and again before me, Horizon argues that the children involved were not employees of Horizon, but were independent contractors and therefore not subject to the oppressive child labor provisions of the FLSA. Horizon's President, Mr. Crowther, is particularly concerned that the ALJ did not refer to any of the cases and other authorities cited to him by Horizon in support of its position. Letter at 1-2. I agree with the ALJ that the children were employees within the meaning of the FLSA. As I discuss below, it was not inappropriate for the ALJ to fail to discuss the sources cited by Horizon, because they are irrelevant to the issue whether the children were employees within the meaning of the FLSA.

The answer to the question whether the children were employees of Horizon within the meaning of the FLSA begins with the statutory language of the FLSA itself. Section 3 of the FLSA, 29 U.S.C. § 203 (1988) provides the following relevant definitions:

(d) "Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee . . . . (e)(1) . . . [T]he term "employee" means any individual employed by an employer.

* * * * *

(g) "Employ" includes to suffer or permit to work.

These definitions, which date from the original Act in 1938, have been the subject of extensive court interpretation and discussion over the last half century. Horizon argues that the appropriate test to apply under the FLSA when determining whether the children were Horizon employees or independent contractors is the one that is used under the common law, is applied under the National Labor Relations Act, is similar to the test applied by the IRS, and to the test

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applied by the Utah Department of Employment Security in interpreting the Utah Employment Economic Security Act. Letter at 1. Further, Horizon asserts that if the correct test were applied, the children would be found to be independent contractors and not subject to the oppressive child labor provisions of the FLSA.

There can be no doubt that the appropriate test to use to determine whether an individual is an employee within the meaning of the FLSA is the one that has been developed and applied by the courts in FLSA cases, as opposed to tests which have evolved in other statutory contexts. Thus, court decisions involving the Internal Revenue Code and the NLRA are of no significance in determining whether an individual is an employee or independent contractor under the FLSA. Similarly, a state court's determination as to what constitutes an "employee" under state law does not control federal interpretation of the meaning of the term under federal law. Furthermore, as many federal courts, including the Supreme Court, have made absolutely clear, the test for determining whether an individual is an employee under the FLSA is far broader than the common law test. Thus, the Supreme Court has stated that this is "the broadest definition . . . ever included in any one act." United States v. Rosenwasser, 323 U.S. 360, 363 n.3 (1945), quoting from Sen. Hugo Black, the FLSA's sponsor, 81 Cong. Rec. 7657 (1937).

The Supreme Court recently has reaffirmed the expansive scope of the FLSA's coverage of employees. In Nationwide Mutual Ins. Co. v. Darden, 112 S.Ct. 1344 (1992), the Court ruled that in the absence of a useful statutory definition or clear legislative history, the term "employee" as used in the Employee Retirement Income Security Act (ERISA) should be given its common law meaning. While indicating that it might well apply this rule to a wide variety of statutes which had definitions of "employee" similar to ERISA, the Court specifically noted that the definition of employee under the FLSA was to be given a much broader meaning. The Court found it significant that the FLSA defines "employ" to mean "suffer or permit to work." Nationwide Mutual Ins. Co. v. Darden, 112 S.Ct. at 1350. "This latter definition, whose striking breadth we have previously noted, . . . stretches the meaning of 'employee' to cover some parties who might not qualify as such under a strict application of traditional agency law principles." Id.

The proper test under the FLSA has been well defined by the courts. For example in Dole v. Snell, 875 F.2d 802, 804 (1989), the United States Court of Appeals for the Tenth Circuit noted that under the FLSA, "the Supreme Court has directed that the economic realities of the relationship govern, and the focal point is 'whether the individual is economically dependent on the business to which he renders service . . . or is, as a matter of economic fact, in business for himself." Citations omitted.³ Further, as noted in Snell, 875 F.2d at 804:

Courts have adopted an expansive interpretation of the definitions relating to employment status under the FLSA,[ ] in order to effectuate its broad remedial purposes . . . . Courts are not limited by any contractual terminology used by the parties or by the traditional common law concepts of "employee" or "independent contractor." . . .

Footnote and citations omitted.

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The courts generally consider six factors in applying the "economic realities"' test. Five of these factors were enunciated by the Supreme Court in United States v. Silk, 331 U.S. 704, 723 (1947):

(1) [t]he degree of control exerted by the alleged employer over the worker; (2) the worker's opportunity for profit or loss; (3) the worker's investment in the business; (4) the permanence of the working relationship; and (5) the degree of skill required to perform the work.

A sixth factor, "the extent to which the work is an integral part of the alleged employer's business," is also commonly considered. UUSnell/U/U, 875 F.2d at 805. This is the test applied by the ALJ (see D. and O. at 9-14), and he was clearly correct in doing so.

Further, I concur with the conclusion of the ALJ that under the definition applicable to FLSA cases, the children are "employees." As such they are subject to the Act's protections against oppressive child labor.

As the court noted in Snell, 875 F.2d at 805, "no one of [the factors cited above] in isolation is dispositive; rather the test is based upon a totality of the circumstances." See also Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947). The uncontroverted evidence in this case establishes the following. First, although the relationship between the children and Horizon was loose, Horizon exercised control over the work. Mr. Crowther instructed Mrs. Jones in the procedures to be followed on the big mailing project, and she in turn instructed the children. D. and O. at 4. If the work had not been performed in an adequate or timely manner, Horizon would have used its regular employees to complete the mailings. T. 40, 43. Horizon provided the children with all of the provisions necessary to carry out their work. Id. at 5-6. The children had absolutely no say in the amount of money they earned. In fact, some of them did not know the rate at which they were to be paid. Id. at 4. Although the children's work schedules were flexible, that fact does not necessarily negate the element of control. See, e.g. Snell, 875 F. 2d at 805-808.⁴

Second, the children did not have any opportunity for profit or loss from Horizon's business. The money they earned cannot appropriately be considered an opportunity for profit. The children simply were paid wages for the work they completed, either in the form of a piece rate, or hourly wages.⁵ The children had no input into company decisions.

Third, none of the children had any investment in the business. They were simply doing work for the company. "The 'investment' which must be considered as a factor is the amount of large capital expenditures, such as risk capital and capital investments, not negligible items, or labor itself." Snell, 875 F.2d at 810, citing Mr. W Fireworks, 814 F.2d at 1052.

Fourth, there was no degree of permanence to the children's work for Horizon. Indeed, one of them worked a total of 2.1 hours for the company. T. 15.

Fifth, no skills were required for this job. The jobs, by and large simply involved stuffing and labeling envelopes. Almost no training was required. Instructions given to the children were brief or non-existent. D. and O. at 4, 13. "The lack of the requirement of specialized skills is indicative of employee status." Snell, 875 F.2d at 811.

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Finally, the type of work performed by the children is an integral part of the business. Rutherford Food Corn. v. McComb, 331 U.S. at 726; Dole v. Snell, 875 F.2d at 811. Because Horizon is a mail-order business, the sending of solicitations for purchases and of advertising material is certainly integral to its business. Horizon's President conceded at the hearing that if the children had not performed these tasks, other employees of Horizon would have. T. 43.

Not all of the factors described above weigh in favor of a conclusion that the children were Horizon's employees. In particular, the informality of the relationship and the shortness of the duration of the relationship weigh in favor of independent contractor status. However, the children had no opportunity for profit or loss, were not invested in the business, needed no skills to perform the work, and were performing work which was integral to Horizon's mail-order business. On balance, I believe that the ALJ appropriately determined that the children were employees and therefore subject to the protections of the Fair Labor Standards Act. Because it is uncontradicted that they were under the age of 14 when they worked for Horizon, a violation of the oppressive child labor provision of the FLSA was established. I do not agree, however, with the ALJ's assessment of a penalty in this case. At the time the violations in this case were committed, Section 16(e) of the Fair Labor Standards Act, 29 U.S.C. 216(e) (1988), provided:⁶

Any person who violates the provisions of section 12, relating to child labor, or any regulations issued under that section, shall be subject to a civil penalty of not to exceed ,000 for each employee who was the subject of such a violation . . . . In determining the amount of any penalty under this subsection, the appropriateness of such penalty to the size of the business of the person charged and the gravity of the violation shall be considered . . . .

The Labor Department regulations implementing this statutory provision provide in pertinent part:

(a) The administrative determination of the amount of the civil penalty . . . shall be based on the available evidence of the violation or violations and shall take into consideration the size of the business of the person charged and the gravity of the violation as provided in paragraphs (b) through (d) of this section.

(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 . . . taking into account the number of employees employed by that person . . . , 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 the 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.

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(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 further be determined, where appropriate,

(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 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 (1993). The ALJ ruled that the violations in this case were not de minimis and that a civil penalty in the circumstances of this case is necessary to achieve the objectives of the Act. D. and O. at 16.

I conclude as a matter of law that the oppressive child labor violations committed by Horizon fall within the exemption contained in 29 C.F.R. § 579.5(d)(1) and therefore vacate that part of the ALJ's decision which assesses a penalty. I emphasize that I am not overturning the ALJ's findings of fact here, but rather disagreeing with his application of the facts to the legal standard set forth in section 579.5(d)(1).

There are three elements to the penalty exemption contained in section 579.5(d)(1): 1) the violation must be "de minimis;" 2) there must be credible assurance of future compliance with the child labor requirements of the FLSA; and 3) a civil money penalty is not necessary under the circumstances to achieve the Act's objectives.

First, I conclude that the violations of the child labor provisions which Horizon committed were de minimis. The term "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). Although I am loath to apply such

a maxim in a child labor case, I think that these violations must qualify as de minimis if this exemption is to have any meaning.

The large mailing-envelope stuffing project grew out of a conversation that Mr. Crowther had with his neighbor, Mrs. Jones, in which-she expressed concern that there were very limited opportunities for her children to earn spending money. D. and O. at 3; T. 24, 41 (Crowther), 171 (Sue Jones). Mr. Crowther later talked to Mrs. Jones and offered to let her children work on the big mailing. T. 24. Four Jones children--Randy, Nathan, Cheryl, and Eric--worked on this mailing at home during their spring break. D. and O. at 3-4. Two of Cheryl's friends, Corinne Gubler and Kory Merrill, joined the project. D. and O. at 3; T. 65, 126-127. They worked on the project in the Jones home, often while they watched television and ate snacks, and during a slumber party. D. and O. at 4; T. 24, 162, 165.

Children also worked on similar mailings at the Crowther's home and at the Horizon plant. See D. and O. at 5. The children who worked at the Crowther's

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house set their own hours and kept track of the hours they worked on a piece of paper. D. and O. at 5. They worked after school and during the summer. Id.

The work at the Horizon plant was essentially the same--stuffing envelopes--although in different surroundings. D. and O. at 5. The ALJ found, and the finding is supported by substantial evidence in the record, that the children were not near hazardous equipment in the plant. D. and O. at 15. None of the work was strenuous, and there it no evidence that the work interfered with the children's schooling or health. See D. and O. at 15.

The amount of work done by the children also was minimal. It was stipulated that in the two year period for which the Wage and Hour Division analyzed records, the children worked a total of less than 203 hours, or an average of 17 hours per child. ALJX-7 at 4-5; T. 15. Even that average number distorts the facts somewhat, because some children who were the subjects of penalties hardly worked at all. For example Randy Jones (age 13) worked a total of 2.1 hours during the two year period in question. T. 15. Kim Adams (age 13) worked 5.3 hours. ALJX-7 at 4. Scott Endrizzi (age 11) worked 10 hours. Id. Heather Kinnear (age 13) worked 4.7 hours. Id. Heidi Kocherhaus (age 13) worked 4.3 hours. Id. Thus, five of the twelve children accounted for only 26.4 hours over a two year period. For these reasons, I conclude that the violations at issue here are de minimis.

Second, contrary to the holding of the ALJ, I conclude that Horizon's President, Duane Crowther, gave credible assurances of future compliance.⁷ Mr. Crowther's disagreement with the

Wage and Hour Division was over the status of the children as employees. He firmly believed that they were independent contractors and therefore exempt from coverage under the FLSA. As both the ALJ and I conclude, he was quite wrong in this regard. However, it is abundantly clear from the record and filings in this case that this was an issue of principle with Mr. Crowther, and not a callous attempt to evade the law. Thus, Mr. Crowther stated in his letter to the Wage and Hour investigator: "Please be gentle with us. According to our understanding, our use of these young people was both legal and appropriate. We certainly had no intention of breaking the law." PX-1. In his post-hearing brief Mr. Crowther stated that, "[a]s soon as the question was raised by the Department of Labor, there was an immediate and permanent cessation of business-related involvement with all the youths involved, pending the outcome of the hearing. There has been no effort to 'slide' by." Rebuttal to the Department of Labor's Post-Hearing Brief, dated October 22, 1991, at 11. Mr. Crowther also made explicit assurances of future compliance in his Letter Requesting Review at 3-4:

1. As soon as the [oppressive child labor] issue was raised, Horizon immediately stopped utilizing any youths whatsoever in its independent contractor aspects of the business. 2. Other Horizon Publishers youth employees, between the ages of 16 and 18, were specifically cautioned and required to give full observance to Labor Department stipulations concerning number of hours worked, not using prohibited machines, etc. (This represented no change, whatsoever; these provisions were already beingfully observed.)⁸

The Office of the Solicitor (SOL) dismisses these statements as "self-serving." SOL Brief at 23. SOL argues that the prospect of future compliance

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should be measured by Horizon's previous conduct. Id. I agree that past conduct is a factor to be weighed in evaluating promises of future compliance. However, there was no showing here that Horizon had ever previously engaged in unlawful oppressive child labor. In fact, the only previous Wage and Hour Division inspection, in 1977, had turned up no child labor violations. D. and O. at 15. And although the child labor provisions of the FLSA were explained to Mr. Crowther at the time of that inspection, PX-5, there is no evidence in the record that Mr. Crowther was instructed regarding the reach of the definition of "employee" within the meaning of the FLSA. Thus there is nothing in the record to contradict my conclusion that while Mr. Crowther's belief that the children were independent contractors was erroneous it was held in good faith, and he was committed to complying with the law.⁹

Finally, for many of the reasons articulated above, this is not a case in which a civil penalty is necessary to achieve the purposes of the Act. 29 C.F.R. § 579.5(d)(1) (1993). No purpose will be served in upholding the penalty assessed here by the ALJ. Mr. Crowther is incorrect, as a matter of law, regarding the principle for which he argued. However, a civil money penalty under the particular circumstances of this case is not necessary to achieve future compliance by Horizon or any other employer with the child labor provisions of the Act.

For the foregoing reasons I affirm the ALJ's decision with regard to violations of the child labor provisions of the FLSA, and vacate the portion of his decision which assesses a penalty.

SO ORDERED.

Robert Reich
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹The case caption is hereby corrected pursuant to 29 C.F.R. § 580.10.

²Although no one at Horizon asked the children their ages, the children were all from the Crowther's neighborhood, and Duane Crowther readily admitted that he knew the children were under the age of 14. T. 35-36.

³Of course an evaluation of whether "the individual is economically dependent" on an employer does not have much relevance in the context of child labor, where presumably, the child is in large measure economically dependent upon his or her parent(s). This fact does not invalidate the factors applied to determine the "economic realities"' however. See pp. 10-12 below.

⁴At least one court has interpreted the control factor to include the "defendants' right to control the entire . . . operation, not just the details of harvesting." Secretary of Labor v. Lauritzen, 835 F.2d 1529, 1536 (7th Cir. 1987), UUcert. denied/U/U, 488 U.S. 898 (1988), reh'g denied, 488 U.S. 987 (1988).

⁵Piece rate work "is more like wages than an opportunity for 'profit.'" Brock v. Mr. W Fireworks. Inc., 814 F.2d 1042, 1050-51 (5th Cir. 1987), cert. denied, 484 U.S. 924 (1987); Snell, 875 F.2d at 809-10.

⁶In 1990 Section 16 (e) was amended to increase the maximum civil money penalty for violations of the child labor provisions to $10,000. Omnibus Reconciliation Act of 1990, Pub. L. No. 101508, 104 Stat. 1388-29 (1990).

⁷I am not overruling a credibility determination here, because the ALJ did not make any; he simply stated that "[t]he record fails to contain any credible assurance of future compliance with the child labor standards of the Act." D. and O. at 16. It is true that the hearing record does not contain any such assurance from Mr. Crowther. However, as I discuss in the text, Mr. Crowther did assure the Wage and Hour Division that he intended to comply with its determination, in spite of his difference of opinion regarding the employment status of the children.

⁸These statements were not made under oath. However, Section 579.5 does not mandate that credible assurances of future compliance be under oath, as the requirement is contained in a provision which clearly applies at a stage of the matter--the administrative determination by the Wage and Hour Division--which precedes any opportunity for sworn testimony.

⁹An indication of this is Mr. Crowther's extensive, albeit erroneous, argument that the common law, the IRS, and the NLRA definitions of "employee" should control this case.