based on violations involving the employment of four minors (Brad Barrett, Keith Barrett,
Thomas Hobbs, and Jeremy Stone) who performed work for Harmony on March 28, 1994,
and again on August 10, 1994.
Pursuant to 29 C.F.R. § 580.3, the Wage and Hour Division
served a determination of child labor violations and an assessment of civil money penalties
totaling $12,750.00 on Parris and Harmony by certified mail March 28, 1994, and again on
August 10, 1994. Parris timely excepted to the notice of alleged violations and on November
8, 1994, the matter was referred to the ALJ. On September 20, 1995, the Administrator filed
a Motion for an Order of Default, seeking sanctions against Parris for failure to comply with
an Order to Compel Discovery which was issued on August 10, 1995. On August 15, 1995,
the ALJ issued a Notice of Hearing and Prehearing Order stating that a hearing in the matter
would take place on October 23, 1995.
On September 29, 1995, the Administrator filed a Motion for Summary
Decision, arguing that no genuine issue of material fact was present in this matter. On
October 11, 1995, the ALJ issued an Order to Show Cause, ordering Harmony to demonstrate
why the Administrator's motion should not be granted. The Order stated that Parris, who
previously expressed his intention to appear pro se , would be given the
opportunity to present oral argument in opposition to the motion at the hearing.
A hearing was held in Manchester, Tennessee on October 23 and 24,
1995. During his opening statement Brian Dougherty (Dougherty), counsel for the
Administrator, stated that he would introduce evidence of further violations discovered since
the initial investigation, and that the Administrator intended to increase the civil money
penalties based on this information. T. 49, 70. Parris responded by stating: "Your
Honor, does that sound like sort of making it up as you go? The $12,750 was the number that
I'm aware of." T. 50. The ALJ ignored Parris' concerns and informed him that he
would have an opportunity to refute the new allegations during the hearing. T. 50.
On the morning of the second day of the hearing, Parris read a
statement setting forth his objections to the hearing and, in protest, withdrew from the hearing
before Stripling had the opportunity to testify. At that time the ALJ informed Parris that
withdrawal from the hearing meant that summary decision would likely be entered on behalf
of the Administrator. T. 270.
The ALJ allowed the hearing to continue in Parris' absence. Dougherty
called Stripling to the witness stand, whereupon Stripling testified that after preparing and
interviewing the witnesses for the hearing, he learned that Harmony committed additional
violations that were not included on the original Form WH-266. T. 283. Stripling informed
the ALJ of the additional violations and submitted a second Form WH-266, increasing the civil
money penalties to $44,650.00. T. 287; Government Exhibit 11.
In his S. D. and O., the ALJ held that Parris had violated the FLSA and
did not demonstrate the elements necessary for a reduction in the penalty as recalculated by
Stripling. S. D. and O. at 11.
DISCUSSION
The Administrator's findings and Parris' own admissions indicate that
Harmony violated the FLSA by employing children under the age of eighteen in hazardous
occupations. S. D. and O. at 8-10. Parris believes that he was justified in employing these
minors because Harmony is a "school" designed to "help youth gain skills
at an early age." Rebuttal Brief by Respondent, October 15, 1996, p. 4. The ALJ
found that Parris acted in reckless disregard of the child labor provisions of the FLSA, and
his findings are supported by substantial evidence on the record as a whole.
The ALJ properly applied the factors to be considered when
determining the amount of the civil money penalty assessed pursuant to the original Form
WH-266. The sole factor listed in the aforementioned regulations that might otherwise justify
a reduction in the penalty is the financial status of Harmony. Although Parris was reluctant
to comply with the ALJ's discovery orders that would have evidenced the size of his business,
the record indicates that Harmony may have been small enough to qualify for a reduced
penalty. Nevertheless, this fact is outweighed by the other factors cited in the aforementioned
regulations. As stated by the ALJ:
Parris' lack of cooperation, both before and during the hearing, casts
doubt on the sincerity of his assurance of future compliance. Given
Parris' disdain for the regulations and this administrative hearing
process, a civil penalty is necessary to achieve the objectives of the Act.
Parris demonstrated no interest in the age of his employees, heedlessly
exposing them to obvious hazards. Therefore, the violations cannot be
found to be de minimis .
S. D. and O. at 11. Parris has a history of prior violations, having failed to pay back wages
to employees in 1980, 1985, and 1987. S. D. and O. at 10. He has not evidenced a desire
to comply with the FLSA in the future, and we see no reason why the penalty should be
reduced on factual grounds.
However, it was inappropriate for the ALJ to allow the Administrator
to more than triple the amount of civil money penalties sought by filing an additional Form
WH-266 after the commencement of the hearing. Title 29 of the Code of Federal Regulations
requires the Administrator to give written notice of civil money penalties.3 The Administrator's
determination of the amount of the penalty for a particular violation or violations of the child
labor provisions becomes final 15 days after receipt of the notice of penalty by certified mail
by the employer. 29 U.S.C. § 216(d)(3). The regulations require that the notice to the
employer set forth, at a minimum, the amount of the penalty, the reasons for the penalty, and
the employer's right to except to the penalties and request a hearing. 29 C.F.R. §
580.4.
Parris indicated at the beginning of the hearing that he had no
knowledge of the additional allegations. Because Parris was appearing pro se , the
ALJ should have recognized his statement regarding the new allegations ("Your Honor,
does that sound like sort of making it up as you go? The $12,750 was the number that I'm
aware of." T. 50.) as an objection to their introduction. See, e.g.,
Saporito v. Florida Power & Light Company, et al., Case No. 94-ERA-35, Final
Dec. and Order, July 19, 1996 (complainant appearing pro se is entitled to a
certain degree of adjudicative latitude); Grizzard v. Tennessee Valley Authority ,
Case No. 90-ERA-52, Final Dec. and Order, Sept. 8, 1992 (pro se Complainant
cannot be held to the same standard of pleadings as if he were represented by legal counsel).
Parris never received a copy of the second Form WH-266 completed
by Stripling and was not present to refute the claims contained in that document. The
additional allegations that were not part of the Administrator's initial notice of violations were
not properly before the ALJ because they had not been served in accordance with the
regulations. Parris was not afforded proper notice of the additional allegations, and he had
no opportunity to engage in discovery or prepare a defense to the new charges. It was
improper for the ALJ to incorporate the additional allegations into what, in effect, became a
default judgement against Parris after his departure from the hearing.
Therefore, it is hereby ordered that the determination of the ALJ
regarding the Administrator's motion for summary judgment is AFFIRMED, in part, and
Parris and Harmony are therefore ordered to pay the civil money penalties assessed by the
Administrator in the amount of $12,750.00. The portion of the S. D. and O. regarding the
assessment of additional penalties is REVERSED and these claims are DISMISSED
WITHOUT PREJUDICE.
SO ORDERED.
DAVID A. O'BRIEN
KARL J. SANDSTROM
JOYCE D. MILLER
[ENDNOTES]
1
2
3
Whenever the Administrator determines that there has been a violation by any
person of section 12 of the Act relating to child labor or any regulation issued under that
section, or determines that there has been a repeated or willful violation by any person of
section 6 or section 7 of the Act, and determines that imposition of a civil money penalty for
such violation is appropriate, the Administrator shall issue and serve a notice of such penalty
on such person in person or by certified mail. Where service by certified mail is not accepted
by the party, notice shall be deemed received on the date of attempted delivery. Where service
is not accepted, the Administrator may exercise discretion to serve the notice by regular
mail.
