Fair Labor and Business Practices Decisions

Citation vacated because contractor had no notice of proper wage rates and job classifications. The applicable wage rates and job classifications were not established before the contract was bid and the contractor was not otherwise on notice of the proper rates and classifications where it was not a party to the collective bargaining agreements on which they were based.

OAG's Motion for Reconsideration was timely filed because filing period runs from date decision was mailed. Motion denied because claims of legal error are not grounds for reconsideration.

Because the petitioner’s pro se representation generates no income for her and is not expected to do so, it is not “employment” for purposes of establishing her eligibility for M.G.L. c. 115 veterans benefits; accordingly, the decision of the Massachusetts Department of Veterans Services sustaining the suspension of petitioner’s veterans benefits based upon her refusal to accept any kind of employment is affirmed, without prejudice to a reapplication by the petitioner for M.G.L. c.115 benefits that meets the employment-related requirements of 108 CMR 7.01 and 7.02.

This appeal is dismissed for lack of prosecution after Petitioner failed to appear at the pre-hearing conference and later, at the hearing. Reasons for the failure to appear at the hearing are insufficient to excuse the absence.

The petitioners' challenge to nine prevailing wage civil citations was to the job classifications themselves, which are determined exclusively by the Commissioner. Any challenge to Commissioner-issued job classifications must be brought before the Commissioner. The jurisdiction of the Division of Administrative Law Appeals is limited to determining whether or not the citations were erroneously issued by the Attorney General.

General Contractor is not in violation of G. L.c. 149, s. 148 (nonpayment of wages), s. 149B (misclassification of an employee as an independent contractor) or G.L. c. 151, s. 19(3) failure to furnish records for inspection). The General Contractor met his burden of satisfying all three prongs of the Independent Contractor Law as: the worker/complainant was free of the presumed employer's control, the General Contractor provided no direct supervision of the worker/complainant, and the worker/complainant's work was performed outside of the usual course of the General Contractor's business. The claims of the worker/complainant were not credible.

A Connecticut electrical company was cited for failing to pay its employees the prevailing wage and taking impermissible deductions for vacation. Decision upholds the prevailing wage portion of the citation but vacates the vacation portion because the program is voluntary and the employees get all of their money back each year. The civil penalty is reduced from $10,000 to $2,000.

Appeal challenging civil penalties assessed for failure to pay prevailing wages and submit certified payroll records, in violation of M.G.L. c. 149, §§ 27 and 27B, respectively, is dismissed for mootness following payment pursuant to settlement.

There is no jurisdiction to hold a hearing because the appeal of the two citations was not timely made. Respondent's Motion to Dismiss for this reason is allowed. Petitioner, the sole owner and proprietor of a business that worked on a public construction project at a library, was issued citations by OAG-FLD for failing to pay the prevailing wage to one of his workers on this project, for failing to maintain payroll records on the project, and for failing to make these records available for inspection by OAG-FLD. The record shows Petitioner was able, before the citations were issued, to communicate about the issues raised in the citations with OAG-FLD through telephone conversations. The record shows he received the citations. His claim of having been in poor health with cancer does not excuse his untimely filed appeals.

An appeal challenging a $3,000 civil penalty assessed in a citation issued by the Attorney General’s Fair Labor Division for failure to furnish records regarding wage payments, in violation of M.G.L. c. 151, § 19(3), is dismissed for lack of jurisdiction because it was not filed within the ten-day appeal period prescribed by M.G.L. c. 149, § 27C(b)(4). That the petitioners lacked counsel to assist them in recognizing grounds for appealing the penalty until the appeal period had run was a matter of personal choice rather than the result of defective appeal rights notice in the Fair Labor Division’s citation, and therefore did not toll the appeal period. The petitioners’ challenge to the constitutionality of the statutory ten-day appeal period is noted as having been raised and, with the operative dates and absence of circumstances tolling the appeal period established, the claim is preserved for review by the Superior Court if the petitioners seek it.

Appeal by petitioners Daniel Dunn and Bayview Development, LLC from two citations issued to them by the Attorney General’s Fair Labor Division, one for unintentional failure to pay wages to a former Bayview employee during the period January 3, 2007 to May 9, 2007, in violation of M.G.L. c. 149, § 148 (ordering payment of $5,720, consisting of $4,820 in restitution for unpaid wages and vacation time and a $900 civil penalty), and the other for intentional failure to furnish employment records for inspection, in violation of M.G.L. c. 151, § 19(3) (ordering payment of a $200 civil penalty). Following a hearing, the total amount that the petitioners were ordered to pay by the two citations is reduced from $5,920 to $4,505.78, based upon the following adjustments:

Because the evidence is insufficient to show any particular level of unpaid wages, I have no basis on which to modify the citation. Accordingly, I conclude that the citation cannot be modified and must therefore be vacated.

An appeal challenging a citation issued by the Attorney General’s Fair Labor Division, ordering the petitioners to pay $2,272.50 in restitution and a $1,000 civil penalty for their unintentional failure to make timely wage payments to four employees, in violation of M.G.L. c. 149, § 148, is dismissed for lack of prosecution, because the petitioners did not appear at the prehearing conference or respond to a subsequent order to show cause, and the citation is affirmed.

The Fair Labor Division issued a subcontractor on a public works construction project a citation, including a $5,500.00 penalty, for failing to provide payroll reports to the awarding authority each week. After a hearing, I determine that when the Fair Labor Division set the penalty amount, it failed to consider four of the five statutorily-mandated factors and the citation was, thus, erroneously issued. Consequently, I vacate the citation, including the penalty.

The petitioners filed no response to the order to show cause, and the deadline recited in the order for doing so has passed. Accordingly, this appeal is dismissed for lack of prosecution, pursuant to 801 CMR 1.01(7)(g)2, and the appealed citation, No. WHO80101, is hereby affirmed.

Intra America Motor Carriers did not file an appeal. Accordingly, the civil citation that the office of the Attorney General issued to it is final. William Mungai did not present any evidence or argument on his behalf. He failed, thus, to demonstrate that the citation was erroneously issued to him

Petitioner business violated G.L. c. 149, s. 27C (b)(4) (failing to furnish records for inspection) and c. 151, ss. 15 and 19(3) (failure to keep true and accurate records of the names, addresses, occupations of all employees and of the amounts paid to those employees during each pay period).

After a careful review of the evidence, I conclude that Mr. Niero has not met his burden of proof, but that I.N. Painting has demonstrated by a preponderance of the evidence that the citation against it was erroneously issued.

Nothing in the Motion for Reconsideration shows any facts presented at the hearing that were not given consideration, and nothing in the Motion sets forth any significant factor ignored, or any mechanical or clerical error in the Decision other than the correction of the DALA address at page 2.