DATE: November 20, 1995
CASE NO. 93-CLA-82
MARIA ECHAVESTE, ADMINISTRATOR,
WAGE AND HOUR DIVISION, UNITED STATES
DEPARTMENT OF LABOR,[1]
PLAINTIFF,
v.
BLACKHAWK STATE BANK,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This case is before me pursuant to the child labor/hazardous
order provision (Section 2) of the Fair Labor Standards Act of
1938, as amended, (FLSA or the Act), 29 U.S.C. § 212 (1988)
and its implementing regulations at 29 C.F.R. Parts 570 and 579.
On November 29, 1994, the Administrative Law Judge (ALJ) issued a
Decision and Order (D. and O.) reversing a determination by the
above-captioned Plaintiff (hereinafter, the Administrator or the
Agency) that Respondent (Blackhawk or the bank) had violated the
FLSA and the regulatory provision at 29 C.F.R. § 570.52,
Hazardous Order No. 2 (H.O. 2) which prohibits, with certain
limited exceptions, the employment of minor children age 16 or 17
in occupations which involve motor vehicle driving.
After a hearing held in April of 1994, the ALJ decided that
Blackhawk had not engaged in oppressive child labor practices and
that, even if it had, the violation proven on the record before
him was "de minimis" and, thus, did not warrant the
$500.00 in civil money penalties (cmp's) assessed by the
Agency. The basis for the ALJ's ruling of no violation was the
exemption within H.O. 2 for conduct which can be properly
characterized as
[PAGE 2]
"incidental and occasional driving." See, 29 C.F.R.
§ 570.52(b)(1) as cited, in pertinent part, below. This
appeal concerns the parties' dispute over the proper
interpretation to be given to the H.O. 2 exemption for
"incidental and occasional driving" under the facts and
circumstances presented.
BACKGROUND
In this appeal, the statements of the parties have
demonstrably narrowed the issues to be decided. The Agency does
not challenge the ALJ's determination that the violation, if it
occurred, was "de minimis;" or the attendant refusal to
allow the cmp assessment to stand. In addition, the parties have
essentially stipulated to the statutory coverage question
presented by the case, i.e., there is no question that the
activities performed by the minor here (Cindy Boniger)
constituted, at least in part, those of a "driver," defined by
the applicable regulation as "any individual who, in the course
of employment, drives a motor vehicle at any time." 29 C.F.R.
§ 570.52(c)(2). Finally, in the absence of any
definitional guidance for either of the terms in dispute, the
parties also appear to agree that the driving performed by the
minor was "incidental" in that it was distinctly adjunct to her
primary duties with the bank. Since there is also agreement that
the exemption is phrased in the conjunctive, i.e.,
in order for its provisions to apply the driving at issue must be
both incidental and occasional, the crux of the dispute on
appeal concerns the issue of whether the driving by this minor
was "occasional."
Boniger[2] was, during the period which is relevant, a 17
year old cooperative education student attending Orion (Illinois)
High School in the mornings and working for Blackhawk in the
afternoons and on weekends. The record reveals that Boniger
worked as a bookkeeping trainee for one-half of the relevant
timeframe and as a teller trainee for the remaining period. It
is undisputed that while working as a bookkeeper Boniger drove
bank-owned vehicles while performing the duties which were
regularly assigned to her as a bookkeeper. In addition to the
clerical/administrative duties which constituted the bulk of
bookkeeping duties, Blackhawk's bookkeepers also drove to other
branches of the bank in order to pick up "proof" work,
i.e., checks to be validated and processed, and on
occasion drove to area post offices to drop off mail at the end
of the day.
Prior to the hearing, the parties further stipulated that
Boniger drove on "at least" the 107 separate occasions which are
referenced in the ALJ's D. and O. at p.4. On occasion, Boniger
would drive more than once in a day and sometimes as much as
three times per day. Finally, the parties agree that all of her
driving duties ceased when she transferred from the bookkeeping
department to the teller trainee program.
[PAGE 3]
DISCUSSION
The incidental and occasional driving exemption which is at the
heart of this matter reads, in pertinent part, as follows:
(b)(1) Exemption- Incidental and occasional driving.
The findings and declaration in paragraph (a) of this
section shall not apply to the operation of automobiles
or trucks not exceeding 6,000 pounds gross vehicle
weight if such driving is restricted to daylight hours;
provided, such operation is only occasional and
incidental to the minor's employment; that the minor
holds a State license valid for the type of driving
involved in the job performed and has completed a State
approved driver education course; and provided
further, that the vehicle is equipped with a seat
belt or similar restraining device for the driver and
for each helper, and the employer has instructed each
minor that such belts or other devices must be used . .
. .
29 C.F.R. § 570.52(b)(1). The contention of the Agency is
that Boniger's driving was not incidental and occasional
and that the exemption is, therefore, not applicable.
Since the term "occasional," which is so critical to this
matter, is not defined by either the Act or the regulations,
Blackhawk argues that it should be evaluated on the basis of its
common and/or ordinary meaning. However, in this case where the
dispute to be resolved involves an exception to a remedial
statute, I agree with the Agency that such an exception must be
narrowly construed. Agency's Brief (A.B.) In Support of Petition
For Review at 11. I also agree with the Agency's contention that
the Respondent/employer must bear the burden of proving its
entitlement to the benefits afforded by the exemption by a
preponderance of the evidence.
In this regard, the ALJ's analysis is flawed because of the
reliance on Boniger's driving frequency as a percentage of her
total employment history with the bank. See, D.
and O. at 6
(". . . the amount of time Ms. Boniger spent driving accounted
for a very small percentage of her total working time (1.16%);"
and 7 ("I reiterate that I found she averaged only 1.7 days of
driving per week, and her trips averaged less than twelve minutes
of driving per trip. Her total driving hours were l.16% of her
total hours worked. I find that this amount of driving is
occasional."). This analysis of the minor's total employment
history is not consistent with a basic tenet of Wage and
Hour/FLSA enforcement law, which is that an employer's compliance
must be measured on a workweek-by-workweek basis. Dove v.
Coupe, 759 F.2d 167, 171 (D.C.Cir. 1985); McDowell v.
Purolator Courier Corp., 25 Wage and Hour Cases 503, 505
(E.D. Ky. 1982). Since the facts reveal that Boniger only drove
during the six months
[PAGE 4]
that she was employed as a bookkeeper with Blackhawk, it is
misleading to measure her driving frequency as a percentage of
her total employment time. When the time period is properly
reduced to include the only relevant period of her employment, it
is clear that her driving cannot be found to have been
occasional.
The Agency has introduced, in its Petition for Review, an
interpretive memorandum from the Wage and Hour Administrator to
agency Regional Wage and Hour Administrators which purports to
clarify and interpret the terms in dispute here (A.S. at 14 and
Attachment A). I find that interpretation to be of no value to
the facts of this case since it was not in existence at the time
this matter was investigated. However, as noted by the Dove
and McDowell cases, the longstanding view that
compliance must be measured on a workweek-by-workweek basis is
applicable to this case and is dispositive.
For the reasons stated above I will reverse the ALJ's
finding that the driving at issue here was occasional and, thus,
exempt from the provisions of H.O. 2. It was not occasional and
the decision to the contrary is hereby REVERSED.
SO ORDERED.
_________________________
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] This case has not been consistently captioned throughout
these proceedings. Since the position of Wage and Hour
Administrator has been filled during the pendency of this matter,
the case is recaptioned to reflect the current parties and the
mandate of 29 C.F.R. § 580.10 that actions in these
administrative proceedings be taken by the Wage and Hour
Administrator.
[2] While cmp's were assessed for violations involving three
(3) other minors, (ALJX 1), the parties agreed to submit evidence
with regard only to Boniger because of her greater involvement in
the questioned activity. Moreover, "[t]he parties essentially
agreed that any conclusions regarding Boniger would be
controlling for purposes of assessing any civil money penalty in
the case. (D. and O. at 4, fn. 2). As noted above, however, the
Agency has since decided to forego any cmp assessment in this
matter.
