DATE: April 18, 1995
CASE NO. 91-CLA-83
IN THE MATTER OF
MARIA ECHAVESTE,
ADMINISTRATOR,
WAGE AND HOUR DIVISION,
U.S. DEPARTMENT OF LABOR,
PLAINTIFF,
v.
LARRY HENDERSON, d/b/a
PIGGLY WIGGLY SUPERMARKET,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This 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, 216(e) (1988), and the implementing regulations at 29 C.F.R.
Parts 570, 579, 580 (1994). The Administrator of the Wage and
Hour Division, U.S. Department of Labor, has appealed from a
Decision and Order (D. and O.) issued by the Administrative Law
Judge (ALJ) on May 11, 1993. The ALJ concluded that the
Administrator failed to carry the burden to prove the ages of
minors employed by Respondent Larry Henderson, d/b/a Piggly
Wiggly Supermarket (Respondent). The ALJ based this decision on
his ruling that an investigative report prepared by the Wage and
Hour Division investigator, a report which listed the ages of the
[PAGE 2]
affected minors and had been accepted into evidence by the ALJ,
was hearsay and as such was not probative of the minors' ages.
For the reasons set forth below, I conclude that the ALJ erred
and that the civil money penalties set aside by the ALJ should be
reinstated.
BACKGROUND
Respondent is a corporation which operated a retail grocery
establishment in Baton Rouge, Louisiana, at all times relevant to
this case. In March 1990 Cheryl Jefferson, a Wage and Hour
compliance officer, conducted a child labor investigation of
Respondent's store. Jefferson identified nine minors employed at
the store in violation of child labor standards. Two of the
minors were identified as working in violation of the time and
hours standards of child labor Regulation No. 3 (Reg. 3).
29 C.F.R. § 570.35. Eight of the minors were identified as
having operated the scrap paper baler in violation of Hazards
Occupations Order No. 12. 29 C.F.R. § 570.63. One minor
was identified as engaging in the operation of a power-driven
meat slicer in violation of Hazardous Occupations Order No. 10.
29 C.F.R. § 570.61. Compliance officer Jefferson testified
that during a final conference with the employer, Respondent's
were provided a Wage Hour Form 103 "Notification to Employer,"
which she prepared to list the results of her investigation.
According to Jefferson, Respondent expressed no objections to the
information contained on Form 103. D. and O. at 4.
Pursuant to the recommendation of the compliance officer,
the total penalty assessed was reduced by the Wage and Hour
Assistant District Director from $6,480 to $4,080. Respondent
filed exceptions to the assessed penalty and the matter was
referred to the Office of Administrative Law Judges. A hearing
was held before an ALJ on June 4, 1992. At the hearing, counsel
for the Administrator introduced Form 103 as an evidentiary
exhibit. Form 103 was admitted into evidence without objection
from Respondent (T. at 6), as Government Exhibit (GX) 2. The
form lists, among other things, each minor's name; the place and
date of birth, and an indication of whether the date of birth was
verified; the child labor violations; the periods of illegal
employment; the minor's age at the start of the violation;
whether any hazardous occupations orders were violated; and
whether any injury occurred, and if so, the extent of harm to the
child and the time lost at work. The form admitted into evidence
in this case indicates that all dates of birth were verified.
Larry Henderson testified that when selecting young workers, he
always made sure that he had employment certificates showing
their ages. T. at 119. Henderson also produced valid employment
certificates for two of the minors, which showed their dates of
birth. T. at 29, 30.
[PAGE 3]
In the D. and O. the ALJ stated that "the record is
practically devoid of any independent, probative evidence
establishing the age of the minors involved in this case." D.
and O. at 6. He stated that except for the two employment
certificates produced by Respondent, "the only other evidence of
record" -- Form 103 -- "is purely hearsay." Id. The ALJ
concluded that the Administrator "failed in its burden to prove a
critical element of its case, i.e., the age of the alleged
employees. . . ." Id.
With respect to the Reg. 3 violations, the ALJ noted that
the wage transcription and computation sheets taken from
Respondent's payroll were submitted by the Administrator without
objection. D. and O. at 7. Since Respondent submitted proof of
birth for one of the minors involved in the Reg. 3 violations,
the ALJ found that the Administrator proved a violation as to
that minor. D. and O. at 9. Regarding a second minor, however,
the ALJ held that absent proof of age, even though "there is no
doubt" that the minor worked in violation of the Reg. 3 hours
provisions, the Administrator did not prove a violation.
With respect to the paper baler violations, the ALJ
dismissed Respondent's contentions that Hazardous Order No. 12
was ambiguous and did not apply to Respondent. D. and O. at 9-
12. Nevertheless, the ALJ held that the Administrator, with one
exception, failed to prove that the operators of the paper balers
were under the age of 18. D. and O. at 13. Accordingly, the ALJ
affirmed the assessed penalty for only one minor. Id.
The ALJ also rejected Respondent's challenge to the applicability
of Hazardous Order No. 10, and found that since the 1960s the
Department of Labor has consistently applied that order as
encompassing meat slicing machines. D. and O. at 14. Although
the ALJ found that one youth had operated the meat slicer on a
number of occasions, he concluded that the Administrator "failed
to affirmatively show" that the youth was a minor. Id.
The ALJ affirmed the full civil money penalties assessed for
the child labor violations involving two minors for whom
Respondent submitted employment certificates, $680 out of the
total assessment of $4,080, and set aside the remainder of the
assessment. D. and O. at 16-18.
DISCUSSION
As discussed above, the ALJ in this case ruled that Form
103, which set forth the investigatory findings of the Wage and
Hour compliance officer, could not serve as proof of the employed
minors' ages because the document was "purely hearsay." On the
basis of that ruling, the ALJ limited his findings of child labor
violations to the violations involving two minors for whom
Respondent submitted employment certificates, and set aside the
assessed civil money penalties for all other alleged violations.
[PAGE 4]
I conclude, however, that the ALJ's Form 103 evidentiary ruling
was in error, and that the entire penalty assessed against
Respondent should be reinstated.
The ALJ's conclusion that the information contained in Form
103 was "purely hearsay" does not accord with the Department of
Labor regulations governing ALJ proceedings. Those regulations,
29 C.F.R. § 18.803(a)(8)(ii) and (iii), incorporate the
public records exception to the hearsay rule as stated in Rule
803(8) of the Federal Rules of Evidence. Rule 803(8) excepts
from the hearsay rule "public records and reports," including:
Records, reports, statements or data compilations, in
any form, of public offices or agencies, setting forth
. . . matters observed pursuant to duty imposed by
law as to which matters there was a duty to report,
. . . or . . . in civil actions and proceedings . . .,
factual findings resulting from an investigation
made pursuant to authority granted by law, unless
sources of information or other circumstances indicate
lack of trustworthiness. (Emphasis supplied.)
As observed by the Supreme Court, the admission of a report into
evidence pursuant to Rule 803(8) "is subject to the ultimate
safeguard -- the opponent's right to present evidence tending to
contradict or diminish the weight of [the report's conclusions]."
Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 168 (1988).
The report at issue in this case easily comes within the
public records and reports exception of Rule 803(8) and the
Department's regulations. The compliance officer had a clear
duty to report her factual findings resulting from an
investigation conducted pursuant to statutory authority. [1]
Section 11(a) of the FLSA, 29 U.S.C. § 211(a), authorizes
the Secretary of Labor "or his designated representatives" to:
[I]nvestigate and gather data regarding the wages,
hours, and other conditions and practices of employment
. . ., and to enter and inspect such places and such
records (and make transcriptions thereof), question
such employees, and investigate such facts, conditions,
practices, or matters as he may deem necessary or
appropriate to determine whether any person has
violated any provision of this Act, or which may aid in
the enforcement of the provisions of this Act.
(Emphasis supplied.)
Likewise, Section 12(b) of the FLSA, 29 U.S.C. § 212(b),
provides that the Secretary "or any of his authorized
representatives, shall make all investigations and inspections
under section 211(a) of this title with respect to the employment
of
minors. . . ."
[PAGE 5]
The ALJ admitted Form 103 into evidence without any
objection from the Respondent. Yet, by concluding that the
Administrator had failed to meet her "burden of proof" as to the
ages of Respondent's employees, the ALJ apparently placed the
burden of demonstrating the trustworthiness of that report on the
Administrator. Both case law and common sense, however, support
the proposition that the burden should fall upon the employer,
who is required to maintain records of employees' birth dates,[2]
to submit evidence challenging the accuracy of the investigator's
report, if the employer believes the report to be inaccurate.
Martin v. Funtime, Inc., 963 F.2d 110 (6th Cir. 1992);
Moss v. Ole South's Real Estate, 933 F.2d 1300 (5th Cir.
1991). In this case Respondent failed to provide any evidence
challenging the accuracy of the birth date information contained
in Form 103.
Wholly apart from the public records and reports hearsay
exception, the regulations governing FLSA civil money penalty
administrative proceedings also address the admissibility of
investigative reports. Those regulations, 29 C.F.R. §
580.7(b), provide:
Notwithstanding the provisions of . . . the hearsay
rule, testimony of current or former Department of
Labor employees concerning information obtained in the
course of investigations and conclusions thereon, as
well as any documents contained in Department of Labor
files (other than the investigations file concerning
the violations as to which the penalty in litigation
has been assessed), shall be admissible in proceedings
under this subpart . . . .
In short, the Department's regulations contemplate that
investigative reports and findings such as Form 103 are
admissible as evidence, and that such reports have probative
value unless the employer submits credible evidence challenging
the accuracy of the information contained in the report. In the
absence of any evidence challenging the accuracy of Form 103, I
conclude that the ALJ erred in dismissing the birth date
information contained in Form 103 as "purely hearsay." The ALJ's
Decision and Order is modified to include findings that
Respondent committed all the child labor violations alleged by
the Administrator, and the $3,400 civil money penalty dismissed
by the ALJ is reinstated.
SO ORDERED.
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Note that pursuant to rule 803(8)(C) the compliance
officer's findings of fact within GX2 i.e. ages of the
minors, are exempt from the hearsay rule. Thus, there is no need
for a double hearsay analysis.
[2] The Department's regulations require employers to maintain
records of employees' birth dates through age 19 for three years.
29 U.S.C. §§ 516.2(a)(3). The regulations, 29 C.F.R.
§ 570.5, further provide that the employer should keep on
file documentation of a minor's age "to protect him from
unwitting violation of the Act."
