ADMINISTRATOR,
WAGE AND HOUR
DIVISION,
UNITED
STATES DEPARTMENT OF LABOR,
Petitioner,
ARB Case No. 03-056
v.
KEYSTONE
FLOOR REFINISHING
COMPANY,
INC., d/b/a KEYSTONE
FLOOR
REFINISHING COMPANY; and
DANIEL LIEZ,
Individually and as
President of
the aforementioned corporation,
Respondents.
ADMINISTRATOR'S REPLY BRIEF
The Administrator submits this reply brief to
rebut several points raised by Keystone in its response
brief.
1.Keystone asserts that the Administrative Law Judge's ("ALJ")
decision to reverse and
vacate the recordkeeping violation and related civil money penalty
("CMP") was justified because the "assessment document" did not
specify the recordkeeping requirement that was violated.(Resp. br. 5). As the
Administrator argued in her opening brief, however, Wage-Hour's CMP
Computation Worksheet (based on Wage-Hour Form 266) clearly
describes, on its face, the recordkeeping violation under 29 C.F.R.
516.2(a)(3) that was reversed by the ALJ. The worksheet specifically
assessed a $275 CMP for "CL Recordkeeping - failure to have date of
birth."That
description tracks the regulatory language and sets forth the
precise nature of the recordkeeping violation under 29 C.F.R.
516.2(a)(3).
2.The Administrator's decision
not to appeal the ALJ's reversal of the recordkeeping violation
based on 29 C.F.R. 570.5(c) (authorized certificate of the minor's
age should be obtained by the prospective employer to protect
himself from an unwitting violation) does not undermine the
legitimacy of the separate basis for that recordkeeping
violation under 29 C.F.R. 516.2(a)(3).At all times, both before the
ALJ and this Board, the Administrator has asserted section
516.2(a)(3) as an independent ground for the single recordkeeping
violation and the concomitant $275 penalty.The Administrator's decision
not to appeal the ALJ's holding that
the regulation at 29 C.F.R. 570.5(c) is not a mandatory requirement
does not negate the applicability of the mandatory requirement to
keep a record of the date of birth of employees under 19 years of
age set out at 29 C.F.R. 516.2(a)(3). The two regulations are not
mutually exclusive; in fact, they complement each other.
3.Keystone's argument that it
was in "substantial compliance" with the regulation at 29 C.F.R.
516.2(a)(3) (Resp. br. 3-4) is incorrect. [1]Specifically, Keystone
points to a "statement in respondents' records" listing Robert
Martin's age as 18 (Resp. br. 4).But this statement (RX4),
based on Keystone's office manager's testimony that Martin told her
upon applying for a job that he was 18, is not sufficient to comply
with the explicit requirement of 29 C.F.R. 516.2(a)(3) to maintain
and preserve a record of the date of birth of an employee under 19
years of age.Indeed, the office manager's testimony that Martin
informed Keystone that he was an employee under 19 years
of age should have put Keystone on notice that it was required to
keep a record of his date of birth in accordance with that
regulation.Moreover,
the dispute between the parties concerning Martin's age
(Martin testified that he told the office manager that he was
17-years-old) underlines the importance of the regulatory
requirement that an employer maintain a record of the date of birth
for an employee under 19 years of age.
4.Keystone blatantly
misrepresents the Administrator's position by
stating that "plaintiff’s
brief nowhere mentions the fact that the ALJ has the authority to
eliminate any assessed penalty" (Resp. br.
4).Actually, the
Administrator’s opening brief states: "While we do not
question an ALJ's authority, in appropriate cases, to reduce or
eliminate the CMPs assessed by Wage-Hour by independently relying on
relevant statutory and regulatory factors, in this case no such
independent statutory or regulatory reasoning was provided"
(Administrator's br. 13).
5.Finally,
Keystone states that "[i]f the Board believes that the reason stated
by the ALJ for eliminating the penalty is not sufficient, then we
urge the Board to remand the matter to the ALJ for further hearing
on this issue and further argument" (Resp. br. 6).There is, however, no need
for a remand.The
Board's review is de
novo, and the record, as currently constituted, is sufficient for
the Board to decide the recordkeeping issue.
CONCLUSION
For the reasons stated in her opening brief, and
in this reply brief, the Administrator respectfully requests that
that part of the ALJ's decision reversing the recordkeeping
violation, and the attendant CMP, assessed by the Administrator for
Keystone's failure to maintain and preserve a record of the date of
birth of the minor employee pursuant to 29 C.F.R. 516.2(a)(3) be
reversed, and the full recordkeeping penalty restored.
Respectfully
submitted,
HOWARD M. RADZELY
Acting Solicitor
STEVEN J. MANDEL
Associate Solicitor
PAUL L. FRIEDEN
Counsel for Appellate
Litigation
______________________________
ROGER W. WILKINSON
Attorney
U.S.
Department of Labor
Office of the
Solicitor
200 Constitution Ave,
N.W.
Suite N-2716
Washington, DC20210
(202) 693-5555
CERTIFICATE OF
SERVICE
I certify that on this day of October, 2003, a copy
of the forgoing Reply Brief of the Administrator was sent by first
class United
States mail to:
Mervin M.
Wilf, Esq.
One
South Broad Street
Suite 1630
Philadelphia,
PA19107
Daniel Liez,
President Keystone Floor Refinishing Co., Inc.
d/b/a/ Keystone Floor Refinishing
Co.
1530 Locust
Street Suite 265
Philadelphia,
PA19102
________________________
ROGER W. WILKINSON
Attorney
Footnote
[1]
"Substantial compliance" is not a concept
that is applicable in the child labor context.Cf.Martin v.
Funtime, Inc., 963 F.2d 110, 115 (6th Cir. 1992) ("[A]n
employer's responsibility for child labor violations approaches
strict liability, and an employer cannot avoid liability by arguing
that its supervisory personnel were not aware of the violation, or
by simply adopting a policy against employing children in violation
of the Act.").