Multiplied Multiplied Total
Minimum Civil By Number by Factor Civil Money
Violation Money Penalties of Violations (1.5/2.0) Penalties
--------- --------------- ------------- --------- ---------
Regulation 3 -
Hours/Time Standard
Violations $ 450.00 X 3 = $ 1,350.00
-
Regulation 3 -
Occupations
(Transportation) 650.00 X 4 = 2,600.00
Legal Age of
Employment (14 years) 700.00 X 3 = 2,100.00
Regulation 3 -
Hours/Time Standard
(Under 14 years) 600.00 X 3 = 1,800.00
Regulation 3 -
Occupation Standard
(Transportation -
under 14 years) 700.00 X 3 = 2,100.00
Hazardous Order
(Operation of Skid-
loader) Ages 16 or 17 1,200.00 X 2 = 2,400.00
Under 16 years of age 1,500.00 X 3 = 4,500.00
Child Labor Record-
keeping/Birth dates of
Minors 275.00 X 1 = 275.00
----------
TOTAL $17,125.00
[Page 5]
The initial part of the child labor civil money penalty report utilized by the
district director provides that penalties are to be recommended if any one of the following factors are
present: (1) death or serious injury; (2) child labor compliance was not assured; (3) child labor
violations were recurring; (4) employer knowledge of child labor was documented; (5) any hazardous
work violation or employment under legal age occurred; and, (6) more than one minor involved. (CX
26). For purposes of this case, the district director determined that factors 5 and 6 were applicable.
(CX 26; Tr. 127).
The second part of the civil money penalty report lists various violations for
which civil money penalties can be assessed with a chart setting forth the minimum amounts to be
considered. The pertinent part of this chart is set forth above. The violations and penalties listed
above for Lynnville are taken from the pertinent part of this chart. The chart and associated
instructions also provide that the minimum penalties for each violation should be multiplied by a factor
of 1.5 if employer knowledge is documented and by 2.0 if any of the following factors are present: (1)
child labor injunction; (2) falsification/concealment of child labor; (3) recurring child labor violations;
or, (4) failure to assure child labor compliance. Obviously, the district director determined that the 1.5
and 2.0 factors were not applicable to this case. I should also note that the chart set forth in this
section of the civil money penalty report does instruct that there is a maximum civil money penalty of
$10,000 per minor. (CX 26).
The third part of the civil money report contains instructions for reducing the
civil money penalties by a certain percentage if the employer has fewer than 100 employees and if
child labor record keeping or Regulation 3 hours violations occurred. (CX 26). For purposes of this
case, however, the district director determined that these factors were not applicable because of the
hazardous order violations.
The district director issued the Notice of Assessment of Civil Money Penalties
for child labor violations to Lynnville on April 7, 1998. The respondent filed its appeal on April 9,
1998. Plaintiff filed the Order of Reference on January 13, 1999. (ALJX 1).
CONCLUSIONS OF LAW
The purpose of the child labor provisions of the Fair Labor Standards Act is
protection of "the safety, health, well-being and opportunities for schooling of youthful
workers." 29 C.F.R. § 570.101. Section 12(c) prohibits any employer from employing
oppressive child labor in interstate commerce. 29 U.S.C. § 212(c); 29 C.F.R. § 570.102.
Section 3(1) of the Act defines "oppressive child labor" to include the employment of a
minor under 14 years of age, employment of minors of ages 14 and 15 in an occupation involving
transportation where work is performed in precluded time periods, and the employment of minors ages
14 through 18 in any occupation in which the Secretary of Labor has found to be particularly
[Page 6]
hazardous or detrimental to their health and well-being. See 29 C.F.R. §§
570.117-570.120. It is particularly important to stress in cases of this nature that the Fair Labor
Standards Act is to be liberally construed because it is remedial in nature. Lenroot v. Western
Union Telephone Co. , 52 F.Supp. 142 (S.D.N.Y. 1943), aff'd 141 F.2d 400 (2nd Cir.
1944), rev'd on other grounds , 323 U.S. 490 (1945). Lynnville conceded that its business is
covered by this statute. (CX 2, p. 1; Tr. 13).
Child Labor Violations
There is no question that Lynnville committed child labor violations in
the employment of the minors involved in this case. Indeed, the company concedes that it did not
record the date of birth of one of its minor employees. This is a violation of Section 516.2(a)(3) of the
regulations promulgated with respect to the Fair Labor Standards Act. 29 C.F.R. § 516.2(a)(3).
There also is no dispute that the respondent committed other child labor
violations. It admits that it employed three 13 year old minors, which is a violation of Section 3(1) of
the Act. See 29 C.F.R. § 570.117(a). Moreover, Lynnville concedes that seven of its
nine minor employees worked in an occupation involving interstate transportation in violation of
Section 570.33. The evidence also shows that seven of Lynnville minor employees under the age of 16
years worked an excessive amount of hours or during time periods which are precluded by the Act.
Section 570.35 pertinently provides:
(a) [E]mployment in any of the occupations to which this subpart is applicable shall be
confined to the following periods:
1. Outside school hours;
2. Not more than 40 hours in any 1 week when school is not in session;
3. Not more than 18 hours in any 1 week when school is in session;
4. Not more than 8 hours in any 1 day when school is not in session;
5. Not more than 3 hours in any 1 day when school is in session;
6. Between 7 a.m. and 7 p.m. in any 1 day, except during the summer
(June 1 through Labor Day) when the evening hour will be 9 p.m.
With regard to this section of the regulations, the evidence clearly shows that one minor 13 years
of age worked past 7 p.m. numerous days while school was in session and that other minors worked in
excess of 3 hours a day on school days, over 18 hours during a school week and more than 8 hours in a
day during a non-school week. Lynnville concedes that its records support these allegations and that
the times worked by the minors are contrary to the provisions of Section 570.35.
[Page 7]
The principal controversy in this case involves the minors' operation of the skid
loader. The plaintiff maintains that this equipment falls within the Secretary of Labor's Hazardous
Order 7 included in Section 570.58(a)(1) and (b)(5). The pertinent part of Section 570.58 provides that
occupations involving the operation of an elevator, crane, derrick, hoist or high-lift truck are
particularly hazardous for minors between the ages of 16 and 18 years of age. 29 C.F.R. §
570.58(a)(1). Subsection (b)(5) of that section of the regulation goes on to define high-lift truck as
"a power-driven industrial type of truck used for lateral transportation that is equipped with a
power-operated lifting device . . . in the form of a fork platform . . . [or] a ram, scoop, shovel, crane, or
other attachments for handling specific loads." That section goes on to indicate that a high-lift
truck is not intended to include "low-lift trucks or low-lift platform trucks that are designed for
the transportation of, but not the tiering of material." 29 C.F.R. § 570.58(b)(5). It is the
Secretary's position that five minors operated the skid loader involved in this case and that such
operation violates the hazardous order provided in Section 570.58(a)(1). Lynnville concedes the
minors operated the skid loader, but argues they did not use this equipment in a manner which is
prohibited by the regulations.
The evidence regarding the minors' use of the skid loader is quite simple. They
used the skid loader in such a manner as was necessary to clean the respondent's trailers and
surrounding loading sites. They pushed or pulled manure or other materials around by lowering the
shovel of the skid loader to its lowest level so that the shovel was on the floor or they manipulated the
shovel by levers so that the shovel could transport the materials at a low level to a dumping site. The
parties agree that the minors were not required to raise the shovel of the skid loader to a high level at
any time during the performance of their work-related duties.
I find it is the mere use of the skid loader by minors that is precluded by Section
570.58(a)(1). How the minors used the equipment, which is clearly covered by Hazardous Order 7, is
not important to the resolution of this case. I recognize that Section 570.58(b)(5) indicates that the use
of a low-lift truck for the transportation of material is not intended to be covered by the hazardous
order, but Lynnville's employees were not using a low-lift truck. They clearly were using a high-lift
truck, which is contrary to Hazardous Order 7, and the operation of such a truck by minors is precluded
by the hazardous order even if the minors' use of the equipment was consistent with that normally
performed by low-lift trucks.
Although the minors testified that they did not lift the shovel of the skid loader
to high levels in performing their duties, the fact that they had the opportunity to do so, either
intentionally or unintentionally, by moving the levers, placed the minors and other minors in the area
in a potentially hazardous position. If respondent's argument is accepted in this case, then it could be
applied to the use of any equipment precluded by the hazardous orders provided in the regulations so
long as the minors avoid all potential hazardous uses of such equipment. Such a liberal interpretation
of the pertinent hazardous orders would allow the employers and/or the minors to make the decision as
to how the hazardous equipment should be operated to preclude a hazardous condition.
[Page 8]
Moreover, the investigative report prepared in connection with Hazardous Order
7 provides in pertinent part:
One of the most important hazards revolves around the driving of the lift truck.
Improper or careless driving results in the truck striking other workers or other vehicles,
many such accidents occurring when the truck is backing up. . . . Injuries also occur
when the load is accidently lowered upon the feet of a helper or when the load falls
while being lowered and strikes the helper or a fellow worker. A few accidents occur
because of the failure of a lift but by far the majority are due to failure to follow safe
operating rules and to insufficient skill or error of judgment on the part of the operator.
U.S. Department of Labor, Division of Labor Standards, The Operation of Hoisting Apparatus
Occupational Hazards to Young Workers , Report No. 7 (1946).
That investigative report goes on to pertinently provide the following regarding
the use of high-lift trucks:
The types of accidents causing the largest percentage of injuries are those usually
associated with a lack of judgment or coordination on the part of the operator
("caught between or struck by objects while loading and unloading" and
"hit by moving fork lift"). This . . . also shows that the operator carries a
great deal of responsibility for the safety of those working with him or in the vicinity. . .
. To protect himself and others about him, the operator of a high-lift truck most possess
the characteristics of judgment, caution, and responsibility characteristics seldom
found in young persons.
Id . at p. 18. As correctly noted by the plaintiff in its brief, the report pertaining to
Hazardous Order No. 7 specifically provides that it pertains to work involving "not only the
raising and lowering of the load, but also the horizontal movement and the placing of the load at a
designated spot." Id . at p. 4.
Although this last reference was to the findings of a study conducted by the Air
Technical Service Command of the Army Air Force, the rationale is clearly applicable to a case of this
nature. It is quite clear from the investigative report that Hazardous Order 7 was intended to preclude
the operation of high-lift trucks by minors under all circumstances. Therefore, I find respondent's
argument to be illogical and is not accepted for purposes of this case. I find that Lynnville violated the
child labor provisions of the Act by allowing the minors involved in this case to operate the skid
loader. U.S. Dept. of Labor v. Sewell-Allen, Inc. et al , 92-CLA-161, 162 (ALJ May 24, 1995).
Civil Money Penalties
The remaining question is whether the amounts assessed by the complainant are
appropriate considering the nature of the child labor violations. Section 16(e) of the Act provides for
"a civil money penalty not to exceed $10,000 for each employee who was the subject of" a
child labor violation of Section 12 of that statute. The pertinent regulations under Section 12 of the
Act initially repeat the specific considerations set forth in the statute but the regulation goes on to also
require consideration of additional factors. 29 C.F.R. § 579.5(a)-(d).
[Page 9]
Plaintiff's investigator of Lynnville's compliance with the child labor provisions
of the Act was solely responsible for determining whether there were violations rather than the amount
of penalties to be assessed. His supervisor, the district director, then determined the amount of
penalties to be assessed against the respondent. In doing so, the district director used a Child Labor
Civil Money Penalty Report (Form WH-266) to compute the recommended penalties. One of
Lynnville's arguments is that the district director did not properly take into account the mitigating
factors set forth in Section 579.5 in determining the amount of the assessments. It argues through
counsel that in relying on the forms to calculate the proposed penalties, the district director clearly
failed to consider all of the relevant factors. This argument has been considered by the Administrative
Review Board, to which this decision is appealable, and it has rejected this argument.
Administrator v. Thirsty's, Inc. , 94-CLA-65 (ARB May 14, 1997).
Before considering the factors set forth in Section 579.5 of the regulations, I
should note that the district director's recommendation of penalties is entitled to respect. It is only my
responsibility to determine whether the penalties proposed by the district director are appropriate in
light of the evidence presented to me and the factors set forth in Section 579.5. Subsection (b) of that
section of the regulations requires the consideration of certain financial or business factors regarding
the company charged with the child labor violation. These factors include: (1) the number of persons
employed; (2) the volume of sales or business; (3) the amount of capital investment and financial
resources; and, (4) other information relevant to the size of the business.
The district director gave little consideration to the financial factors set forth
above in calculating the civil money penalties involved in this case. While the investigator did inquire
as to the number of employees and the volume of sales of Lynnville, this information did not enter into
the district director's calculation of the penalties. It is obvious, however, that the instructions set forth
in the child labor civil money penalty report give no recognition to the financial factors set forth in
Section 579.5(b). Also, it is obvious that the district director had no discretion because he was
required to follow the instructions set forth in the penalty report. I do note that the district director was
instructed by the form to consider the number of Lynnville's employees in deciding whether to reduce
the penalties, but only if the violations involved such things as record keeping, improper hours and
other factors unrelated to the financial aspects of the dealer, not hazardous order violations such as
those involved in this case.
It is my responsibility to consider the appropriateness of the civil money
penalties in light of the factors set forth in Section 579.5(b), despite the district director's failure to
consider all of these factors. I find that the limited amount of financial information submitted into
evidence by the parties neither supports nor detracts from the appropriateness of the civil money
penalties recommended by the complainant. I do note, however, that Lynnville had employed minors
in the past and that it was of sufficient size to be knowledgeable of the child labor requirements. I also
note that Lynnville conceded at the hearing that it is financially able to pay the assessed penalties and
that it did not dispute the penalties based on its size or finances. (Tr. 14).
[Page 10]
Section 579.5(c) provides additional factors to consider in regard to the
appropriateness of the penalties in light of the gravity of the violations. These factors include
consideration of: (1) any history of prior violations; (2) evidence of willfulness or failure to take
reasonable precautions to avoid violations; (3) the number of minors illegally employed; (4) the age of
the minors, as well as records regarding age; (5) the occupation of the minors; (6) exposure to hazards
or any resulting injuries; (7) duration of illegal employment; and, (8) the hours of day during which the
employment occurred and whether such employment was during or outside school hours.
Lynnville maintains that the violations involved in this case were not of severe
gravity and that the violations were not willful. It notes that the minors essentially set their own hours
of work, assuming work was available. Lynnville also points out the minors' parents, some of whom
also were employees, agreed to the minors' work hours.
I believe the district director considered the severity of the violations and
whether they were willful in recommending the penalties. For example, the recommended penalties
are nowhere near the maximum amounts allowed by the statute. I also find the fact that the minors
were able to set their own hours detracts from the employer's position since it shows that Lynnville
was either not cognizant of the hours limitations or did not take seriously the prohibition regarding the
limits on employing minors while school was in session. Moreover, whether the parents condoned the
amount of hours worked and/or the times worked by their children has no bearing on the
reasonableness of the penalties in question. The controlling law and the regulations provide the limits
for the employment of minors and such matters cannot be left to the discretion of employers and
parents.
The form utilized by the district director also requires consideration of additional
Section 579.5(c) factors in that varying amounts of penalties are recommended based on the ages of
the employees, the hazards and nature of the occupation, and the working hours both during and
outside school hours. Also, the history of prior violations and employer knowledge are considered in
using the form since the instructions require increasing the initial recommended penalties by an
appropriate multiple if such factors are documented. I also note that the district director did consider
the ages of the minors involved in this case. The form utilized by him to calculate the penalties
provides varying amounts based on the ages of the minors as well as penalties for record keeping
violations regarding age. It is also true that the number of minors illegally employed was considered
by the district director since the form he utilized to calculate the penalties provides for a multiple based
on the number of violations or minors involved in the violations. Therefore, I believe the district
director did consider many of the factors set forth in Section 579.5(c) in recommending the penalties
involved in this case.
Subsection (d) of Section 579.5 provides that, where appropriate, consideration
shall also be given to whether penalties are necessary to achieve the objectives of the Act. That section
of the regulations further provides that consideration is to be given to whether: (1) the violations are
"de minimis"; (2) there is no previous history of child labor violations; (3) the employer's
assurance of future compliance is credible; and, (4) exposure to obvious hazards was inadvertent rather
than intentional. Such factors also relate to the degree of willfulness involved in the violations.
[Page 11]
Lynnville does argue that the violations are de minimis in nature. In this
regard, I note that de minimis is defined as "very small or trifling matters" for
which "the law does not care for or take notice of." Black's Law Dictionary , 388
6th Ed. (1990); Echaveste v. Horizon Publishers and Distributors , 90-CLA-29 @ 7 (Sec'y May
11, 1994), aff'd on recon. (July 21, 1994). However, I find the "de
minimis " argument to be of little value where, as here, there were numerous violations and
some of the violations involved the use of hazardous equipment by minor employees, some of whom
were only 13 years old. It may appear to Lynnville that some of the violations are trivial. However, I
specifically find that the company's allowance of its minor employees to operate hazardous equipment
to be serious, despite the fact that the minors involved in this case apparently used the equipment in a
safe manner. The mere use of the equipment subjected them to potential harm which is to be avoided
by compliance with the hazardous orders. As I have stated before in cases of this nature, it would take
only one serious accident in the operation of the hazardous equipment for all concerned parties to
understand the importance of enforcing the hazardous orders.
There is no question that the district director considered most of the factors set
forth in Section 579.5(c) and (d). The question is whether the recommendations by the district director
are appropriate in light of his failure to consider all of the factors set forth in that section of the
regulations. In this regard, I reiterate that the statute allows for a penalty of as much as $10,000 for
each minor involved in the violation. Thus, the district director technically could have recommended
penalties far in excess of those proposed in the Order of Reference.
I find that the district director, through the use of the Child Labor Civil Money
Penalty Report, did take into account many of the factors required by the regulations. Those he did not
take into account, I conclude, do not affect my decision. I see no reason to depart from the penalties
recommended by the district director, as these seem reasonable under the circumstances, and are
sufficient to accomplish their purpose of punishing violators of the child labor laws and encouraging
future compliance with those laws. Therefore, I sustain the civil money penalties as assessed by the
district director in full.
I note in closing that there was some disagreement among the parties as to
whether the investigator assured Lynnville's owners that there would be no penalties assessed if they
guaranteed future compliance. The evidence in this regard is conflicting but it tends to support the
plaintiff's position that the investigator was referring to penalties involved in a separate Wage and
Hour case rather than those pertaining to the child labor violations. (Tr. 116-117, 188, 205-206, 208,
211, 228). Notwithstanding, this is of no materiality to my resolution of the case since I only have
jurisdiction to determine whether the penalties assessed are reasonable given the gravity of the
violations. I have concluded that the penalties are reasonable considering the facts of this case.
[Page 12]
ORDER
IT IS HEREBY ORDERED, pursuant to 29 C.F.R. § 580.12, that the
determination of the District Director, Employment Standards Administration, Wage and Hour
Division, United States Department of Labor, issued to Lynnville Transport, Inc. on April 7, 1998,
as modified by the concession of the plaintiff at the hearing, is approved. IT IS FURTHER
ORDERED that Lynnville Transport, Inc. is to pay total civil money penalties totalling $17,125.00 for
violations of the child labor provisions of Section 12 of the Fair Labor Standards Act.
DONALD W. MOSSER
Administrative Law Judge
[ENDNOTES]
1 The caption is corrected to conform with
29 C.F.R. § 580.10 and the appointment of a new Administrator.
2 Regulation section numbers cited in
this decision exclusively pertain to this title of the Code of Federal Regulations.
3 The district director computed a total
of $21,125.00 of civil money penalties in the notice of assessment, but the plaintiff conceded $4,000 of
these penalties at the hearing. (Tr. 13, 14, 129-137; CX 26).