[Title 29 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2008 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
29
Parts 500 to 899
Revised as of July 1, 2006
Labor
________________________
Containing a codification of documents of general
applicability and future effect
As of July 1, 2006
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 29:
Subtitle B--Regulations Relating to Labor (Continued)
Chapter V--Wage and Hour Division, Department of
Labor 5
Finding Aids:
Material Approved for Incorporation by Reference........ 819
Table of CFR Titles and Chapters........................ 821
Alphabetical List of Agencies Appearing in the CFR...... 839
List of CFR Sections Affected........................... 849
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 29 CFR 500.0 refers
to title 29, part 500,
section 0.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
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This material, like any other properly issued regulation, has the force
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What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
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(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
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CFR INDEXES AND TABULAR GUIDES
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Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
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the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
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Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 2006.
[[Page ix]]
THIS TITLE
Title 29--Labor is composed of nine volumes. The parts in these
volumes are arranged in the following order: parts 0-99, parts 100-499,
parts 500-899, parts 900-1899, parts 1900-1910.999, part 1910.1000-End,
parts 1911-1925, part 1926, and part 1927 to end. The contents of these
volumes represent all current regulations codified under this title as
of July 1, 2006.
The OMB control numbers for title 29 CFR part 1910 appear in Sec.
1910.8. For the convenience of the user, Sec. 1910.8 appears in the
Finding Aids section of the volume containing Sec. 1910.1000 to the
end.
Subject indexes appear following the occupational safety and health
standards (part 1910), and following the safety and health regulations
for: Longshoring (part 1918), Gear Certification (part 1919), and
Construction (part 1926).
For this volume, Carol A. Conroy was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page 1]]
TITLE 29--LABOR
(This book contains parts 500 to 899)
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SUBTITLE B--Regulations Relating to Labor (Continued)
Part
chapter v--Wage and Hour Division, Department of Labor...... 500
[[Page 3]]
Subtitle B--Regulations Relating to Labor (Continued)
[[Page 5]]
CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR
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SUBCHAPTER A--REGULATIONS
Part Page
500 Migrant and seasonal agricultural worker
protection.............................. 9
501 Enforcement of contractual obligations for
temporary alien agricultural workers
admitted under section 216 of the
Immigration and Nationality Act......... 53
504 Attestations by facilities using
nonimmigrant aliens as registered nurses 64
505 Labor standards on projects or productions
assisted by grants from the National
Endowments for the Arts and Humanities.. 64
506 Attestations by employers using alien
crewmembers for longshore activities in
U.S. ports.............................. 69
507 Labor condition applications and
requirements for employers using
nonimmigrants on H-1B specialty visas in
specialty occupations and as fashion
models.................................. 69
508 Attestations filed by employers utilizing F-
1 students for off-campus work.......... 69
510 Implementation of the minimum wage
provisions of the 1989 amendments to the
Fair Labor Standards Act in Puerto Rico. 69
511 Wage order procedure for American Samoa..... 91
515 Utilization of State agencies for
investigations and inspections.......... 98
516 Records to be kept by employers............. 100
519 Employment of full-time students at
subminimum wages........................ 113
520 Employment under special certificate of
messengers, learners (including student-
learners), and apprentices.............. 124
521-523 [Reserved]
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525 Employment of workers with disabilities
under special certificates.............. 136
527 [Reserved]
528 Annulment or withdrawal of certificates for
the employment of student-learners,
apprentices, learners, messengers,
handicapped persons, student-workers,
and full-time students in agriculture or
in retail or service establishments at
special minimum wage rates.............. 146
530 Employment of homeworkers in certain
industries.............................. 149
531 Wage payments under the Fair Labor Standards
Act of 1938............................. 161
536 Area of production.......................... 174
541 Defining and delimiting the exemptions for
executive, administrative, professional,
computer and outside sales employees.... 175
547 Requirements of a ``Bona fide thrift or
savings plan''.......................... 200
548 Authorization of established basic rates for
computing overtime pay.................. 201
549 Requirements of a ``Bona fide profit-sharing
plan or trust''......................... 216
550 Defining and delimiting the term ``Talent
fees''.................................. 218
551 Local delivery drivers and helpers; wage
payment plans........................... 219
552 Application of the Fair Labor Standards Act
to domestic service..................... 223
553 Application of the Fair Labor Standards Act
to employees of State and local
governments............................. 228
570 Child labor regulations, orders and
statements of interpretation............ 252
575 Waiver of child labor provisions for
agricultural employment of 10 and 11
year old minors in hand harvesting of
short season crops...................... 294
578 Minimum wage and overtime violations--civil
money penalties......................... 300
579 Child labor violations--civil money
penalties............................... 302
580 Civil money penalties--procedures for
assessing and contesting penalties...... 306
697 Industries in American Samoa................ 310
SUBCHAPTER B--STATEMENTS OF GENERAL POLICY OR INTERPRETATION NOT
DIRECTLY RELATED TO REGULATIONS
775 General..................................... 314
776 Interpretative bulletin on the general
coverage of the wage and hours
provisions of the Fair Labor Standards
Act of 1938............................. 314
[[Page 7]]
778 Overtime compensation....................... 353
779 The Fair Labor Standards Act as applied to
retailers of goods or services.......... 408
780 Exemptions applicable to agriculture,
processing of agricultural commodities,
and related subjects under the Fair
Labor Standards Act..................... 510
782 Exemption from maximum hours provisions for
certain employees of motor carriers..... 583
783 Application of the Fair Labor Standards Act
to employees employed as seamen......... 599
784 Provisions of the Fair Labor Standards Act
applicable to fishing and operations on
aquatic products........................ 615
785 Hours worked................................ 641
786 Miscellaneous exemptions.................... 653
788 Forestry or logging operations in which not
more than eight employees are employed.. 654
789 General statement on the provisions of
section 12(a) and section 15(a)(1) of
the Fair Labor Standards Act of 1938,
relating to written assurances.......... 658
790 General statement as to the effect of the
Portal-to-Portal Act of 1947 on the Fair
Labor Standards Act of 1938............. 663
791 Joint employment relationship under Fair
Labor Standards Act of 1938............. 688
793 Exemption of certain radio and television
station employees from overtime pay
requirements under section 13(b)(9) of
the Fair Labor Standards Act............ 689
794 Partial overtime exemption for employees of
wholesale or bulk petroleum distributors
under section 7(b)(3) of the Fair Labor
Standards Act........................... 695
SUBCHAPTER C--OTHER LAWS
801 Application of the Employee Polygraph
Protection Act of 1988.................. 715
825 The Family and Medical Leave Act of 1993.... 744
SUBCHAPTER D--GARNISHMENT OF EARNINGS
870 Restriction on garnishment.................. 811
871-899 [Reserved]
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SUBCHAPTER A_REGULATIONS
PART 500_MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION--Table of
Contents
Subpart A_General Provisions
Sec.
500.0 Introduction.
500.1 Purpose and scope.
500.2 Compliance with State laws and regulations.
500.3 Effective date of the Act; transition period; repeal of the Farm
Labor Contractor Registration Act.
500.4 Effect of prior judgments and final orders obtained under the Farm
Labor Contractor Registration Act.
500.5 Filing of applications, notices and documents.
500.6 Accuracy of information, statements and data.
500.7 Investigation authority of the Secretary.
500.8 Prohibition on interference with Department of Labor officials.
500.9 Discrimination prohibited.
500.10 Waiver of rights prohibited.
500.20 Definitions.
Applicability of the Act: Exemptions
500.30 Persons not subject to the Act.
Subpart B_Registration of Farm Labor Contractors and Employees of Farm
Labor Contractors Engaged in Farm Labor Contracting Activities
Registration Requirements: General
500.40 Registration in general.
500.41 Farm labor contractor is responsible for actions of his farm
labor contractor employee.
500.42 Certificate of Registration to be carried and exhibited.
500.43 Effect of failure to produce certificate.
Applications and Renewal of Farm Labor Contractor and Farm Labor
Contractor Employee Certificates
500.44 Form of application.
500.45 Contents of application.
500.46 Filing an application.
500.47 Place for filing application.
Action on Application
500.48 Issuance of certificate.
500.50 Duration of certificate.
500.51 Refusal to issue or to renew, or suspension or revocation of
certificate.
500.52 Right to hearing.
500.53 Nontransfer of certificate.
500.54 Change of address.
500.55 Changes to or amendments of certificate authority.
500.56 Replacement of Certificate of Registration or Farm Labor
Contractor Employee Certificate.
Additional Obligations of Farm Labor Contractors and Farm Labor
Contractor Employees
500.60 Farm labor contractors' recruitment, contractual and general
obligations.
500.61 Farm Labor contractors must comply with all worker protections
and all other statutory provisions.
500.62 Obligations of a person holding a valid Farm Labor Contractor
Employee Certificate of Registration.
Subpart C_Worker Protections
General
500.70 Scope of worker protections.
500.71 Utilization of only registered farm labor contractors.
500.72 Agreements with workers.
500.73 Required purchase of goods or services solely from any person
prohibited.
Recruiting, Hiring and Providing Information to Migrant Agricultural
Workers
500.75 Disclosure of information.
Hiring and Providing Information to Seasonal Agricultural Workers
500.76 Disclosure of information.
Employment Information Furnished
500.77 Accuracy of information furnished.
500.78 Information in foreign language.
Wages and Payroll Standards
500.80 Payroll records required.
500.81 Payment of wages when due.
Subpart D_Motor Vehicle Safety and Insurance for Transportation of
Migrant and Seasonal Agricultural Workers, Housing Safety and Health for
Migrant Workers
Motor Vehicle Safety
500.100 Vehicle safety obligations.
500.101 Promulgation and adoption of vehicle standards.
500.102 Applicability of vehicle safety standards.
500.103 Activities not subject to vehicle safety standards.
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500.104 Department of Labor standards for passenger automobiles and
station wagons and transportation of seventy-five miles or
less.
500.105 DOT standards adopted by the Secretary.
Insurance
500.120 Insurance policy or liability bond is required for each vehicle
used to transport any migrant or seasonal agricultural worker.
500.121 Coverage and level of insurance required.
500.122 Adjustments in insurance requirements when workers' compensation
coverage is provided under State law.
500.123 Property damage insurance required.
500.124 Liability bond in lieu of insurance policy.
500.125 Qualifications and eligibility of insurance carrier or surety.
500.126 Duration of insurance or liability bond.
500.127 Limitations on cancellation of insurance or liability bond of
registered farm labor contractors.
500.128 Cancellation of insurance policy or liability bond not relief
from insurance requirements.
Housing Safety and Health
500.130 Application and scope of safety and health requirement.
500.131 Exclusion from housing safety and health requirement.
500.132 Applicable Federal standards: ETA and OSHA housing standards.
500.133 Substantive Federal and State safety and health standards
defined.
500.134 Compliance with State standards.
500.135 Certificate of housing inspection.
Subpart E_Enforcement
500.140 General.
500.141 Concurrent actions.
500.142 Representation of the Secretary.
500.143 Civil money penalty assessment.
500.144 Civil money penalties--payment and collection.
500.145 Registration determinations.
500.146 Continuation of matters involving violations of FLCRA.
500.147 Continuation of matters involving violations of section 106 of
MSPA.
Agreements With Federal and State Agencies
500.155 Authority.
500.156 Scope of agreements with Federal agencies.
500.157 Scope of agreements with State agencies.
500.158 Functions delegatable.
500.159 Submission of plan.
500.160 Approved State plans.
500.161 Audits.
500.162 Reports.
Central Public Registry
500.170 Establishment of registry.
Subpart F_Administrative Proceedings
General
500.200 Establishment of procedures and rules of practice.
500.201 Applicability of procedures and rules.
Procedures Relating to Hearing
500.210 Written notice of determination required.
500.211 Contents of notice.
500.212 Request for hearing.
Procedures Relating to Substituted Service
500.215 Change of address.
500.216 Substituted service.
500.217 Responsibility of Secretary for service.
Rules of Practice
500.219 General.
500.220 Service of determinations and computation of time.
500.221 Commencement of proceeding.
500.222 Designation of record.
500.223 Caption of proceeding.
Referral for Hearing
500.224 Referral to Administrative Law Judge.
500.225 Notice of docketing.
500.226 Service upon attorneys for the Department of Labor--number of
copies.
Procedures Before Administrative Law Judge
500.231 Appearances; representation of the Department of Labor.
500.232 Consent findings and order.
Post-Hearing Procedures
500.262 Decision and order of Administrative Law Judge.
Modification or Vacation of Order of Administrative Law Judge
500.263 Authority of the Secretary.
500.264 Procedures for initiating review.
500.265 Implementation by the Secretary.
500.266 Responsibility of the Office of Administrative Law Judges.
500.267 Filing and Service.
500.268 Final decision of the Secretary.
500.269 Stay pending decision of the Secretary.
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Record
500.270 Retention of official record.
500.271 Certification of official record.
Authority: Pub. L. 97-470, 96 Stat. 2583 (29 U.S.C. 1801-1872);
Secretary's Order No. 4-2001, 66 FR 29656.
Source: 48 FR 36741, Aug. 12, 1983, unless otherwise noted.
Subpart A_General Provisions
Sec. 500.0 Introduction.
(a) The Migrant and Seasonal Agricultural Worker Protection Act
(MSPA), hereinafter referred to as MSPA or the Act, repeals and replaces
the Farm Labor Contractor Registration Act of 1963, as amended,
hereinafter referred to as FLCRA or the Farm Labor Contractor
Registration Act. Prior judgments and final orders obtained under FLCRA
continue in effect as stated in Sec. 500.4.
(b) These regulations include provisions necessitated by the
Immigration Reform and Control Act's (IRCA) amendment to the Immigration
and Nationality Act (INA). IRCA amended MSPA to remove section 106
thereof prohibiting the employment of illegal aliens. Matters concerning
certificate actions or the assessment of civil money penalties, for a
violation of section 106 of MSPA which occurred prior to June 1, 1987,
continue through final administrative determination as stated in Sec.
500.147.
[48 FR 36741, Aug. 12, 1983, as amended at 54 FR 13328, Mar. 31, 1989]
Sec. 500.1 Purpose and scope.
(a) Congress stated, in enacting the Migrant and Seasonal
Agricultural Worker Protection Act that ``[I]t is the purpose of this
Act to remove the restraints on commerce caused by activities
detrimental to migrant and seasonal agricultural workers; to require
farm labor contractors to register under this Act; and to assure
necessary protections for migrant and seasonal agricultural workers,
agricultural associations, and agricultural employers.'' It authorized
the Secretary to issue such rules and regulations as are necessary to
carry out the Act consistent with the requirements of chapter 5 of title
5, United States Code.
(b) These regulations implement this purpose and policy. The
regulations contained in this part are issued in accordance with section
511 of the Act and establish the rules and regulations necessary to
carry out the Act.
(c) Any farm labor contractor, as defined in the Act, is required to
obtain a Certificate of Registration issued pursuant to the Act from the
Department of Labor or from a State agency authorized to issue such
certificates on behalf of the Department of Labor. Such a farm labor
contractor must ensure that any individual whom he employs to perform
any farm labor contracting activities also obtains a Certificate of
Registration. The farm labor contractor is responsible, as well, for any
violation of the Act or these regulations by any such employee whether
or not the employee obtains a certificate. In addition to registering,
farm labor contractors must comply with all other applicable provisions
of the Act when they recruit, solicit, hire, employ, furnish or
transport or, in the case of migrant agricultural workers, provide
housing.
(d) Agricultural employers and agricultural associations which are
subject to the Act must comply with all of the worker protections which
are applicable under the Act to migrant or seasonal agricultural workers
whom they recruit, solicit, hire, employ, furnish, or transport or, in
the case of migrant agricultural workers, provide housing. The
obligations will vary, depending on the types of activities affecting
migrant or seasonal agricultural workers. Agricultural employers and
agricultural associations and their employees need not obtain
Certificates of Registration in order to engage in these activities,
even if the workers they obtain are utilized by other persons or on the
premises of another.
(e) The Act empowers the Secretary of Labor to enforce the Act,
conduct investigations, issue subpenas and, in the case of designated
violations of the Act, impose sanctions. As provided in the Act, the
Secretary is empowered, among other things, to impose an assessment and
to collect a civil money penalty of not more than $1,000 for each
violation, to seek a temporary or permanent restraining order in a U.S.
[[Page 12]]
District Court, and to seek the imposition of criminal penalties on
persons who willfully and knowingly violate the Act or any regulation
under the Act. In accordance with the Act and with these regulations,
the Secretary may refuse to issue or to renew, or may suspend or revoke
a certificate of registration issued to a farm labor contractor or to a
person who engages in farm labor contracting as an employee of a farm
labor contractor.
(f) The facilities and services of the U.S. Employment Service,
including State agencies, authorized by the Wagner-Peyser Act may be
denied to any person found by a final determination by an appropriate
enforcement agency to have violated any employment-related laws
including MSPA when notification of this final determination has been
provided to the Job Service by that enforcement agency. See 20 CFR
658.501(a)(4). The facilities and services of the U.S. Employment
Service shall be restored immediately upon compliance with 20 CFR
658.502(a)(4).
(g) Subparts A through E set forth the substantive regulations
relating to farm labor contractors, agricultural employers and
agricultural associations. These subparts cover the applicability of the
Act, registration requirements applicable to farm labor contractors, the
obligations of persons who hold Certificates of Registration, the worker
protections which must be complied with by all who are subject to the
Act, and the enforcement authority of the Secretary.
(h) Subpart F sets forth the rules of practice for administrative
hearings relating to actions involving Certificates of Registration. It
also outlines the procedure to be followed for filing a challenge to a
proposed administrative action relating to violations and summarizes the
methods provided for collection and recovery of a civil money penalty.
(i)(1) The Act requires that farm labor contractors obtain a
certificate of registration from the Department of Labor prior to
engaging in farm labor contracting activities. The Act also requires
registration by individuals who will perform farm labor contracting
activities for a farm labor contractor. Form WH-510 and WH-512 are the
applications used to obtain Farm Labor Contractor and Farm Labor
Contractor Employee Certificates of Registration. These forms have been
approved by the Office of Management and Budget (OMB) under control
numbers 1215-0038 (WH-510) and 1215-0037 (WH-512). Forms WH-514 and WH-
514a are used when applying for transportation authorization to furnish
proof of compliance with vehicle safety requirements. These forms have
been jointly cleared by OMB under control number 1215-0036.
(2) The Act further requires disclosure to migrant and seasonal
agricultural workers regarding wages, hours and other working conditions
and housing when provided to migrant workers. The Department of Labor
has developed optional forms for use in making the required disclosure.
OMB has approved the following: Worker Information (WH-516) 1215-0145
and Housing Terms and Conditions (WH-521) 1215-0146.
(3) The Act also requires that farm labor contractors, agricultural
employers and agricultural associations make, keep, preserve and
disclose certain payroll records. Forms WH-501 and WH-501a (Spanish
version) are provided to assist in carrying out this requirement. In
addition, farm labor contractors who are applying for housing
authorization must submit information which identifies the housing to be
used along with proof of compliance with housing safety and health
requirements. There has been no form developed for this purpose. The Act
further requires disclosure by the insurance industry of certain
information pertaining to cancellation of vehicle liability insurance
policies. The requirements concerning recordkeeping, housing and
insurance have been cleared by OMB under control number 1215-0148.
(4) The Act provides that no farm labor contractor shall knowingly
employ or utilize the services of aliens not lawfully admitted for
permanent residence or who have not been authorized by the Attorney
General to accept employment. Form WH-509 is an optional form which may
be used to self-certify that the applicant is a citizen of the U.S. This
form has been cleared by
[[Page 13]]
OMB under control number 1215-0091. (See Sec. 500.59(a)(11)).
[48 FR 36741, Aug. 12, 1983; 48 FR 38380, Aug. 23, 1983]
Sec. 500.2 Compliance with State laws and regulations.
The Act and these regulations are intended to supplement State law;
compliance with the Act or these regulations shall not excuse any
individual from compliance with appropriate State law or regulation.
Sec. 500.3 Effective date of the Act; transition period; repeal of
the Farm Labor Contractor Registration Act.
(a) The provisions of the Migrant and Seasonal Agricultural Worker
Protection Act are effective on April 14, 1983, and are codified in 29
U.S.C. 1801 et seq.
(b) The Migrant and Seasonal Agricultural Worker Protection Act
repeals the Farm Labor Contractor Registration Act of 1963, as amended,
(7 U.S.C. 2041, et seq.), effective April 14, 1983.
(c) Violations of the Farm Labor Contractor Registration Act
occurring prior to April 14, 1983, may be pursued by the Department of
Labor after that date.
Sec. 500.4 Effect of prior judgments and final orders obtained under
the Farm Labor Contractor Registration Act.
The Secretary may refuse to issue or to renew, or may suspend or
revoke, a Certificate of Registration under the Act, if the applicant or
holder has failed to pay any court judgment obtained by the Secretary or
any other person under the Farm Labor Contractor Registration Act, or
has failed to comply with any final order issued by the Secretary under
the Farm Labor Contractor Registration Act. The Secretary may deny a
Certificate of Registration under the Act to any farm labor contractor
who has a judgment outstanding against him, or is subject to a final
order assessing a civil money penalty which has not been paid.
Sec. 500.5 Filing of applications, notices and documents.
Unless otherwise prescribed herein, all applications, notices and
other documents required or permitted to be filed by these regulations
shall be filed in accordance with the provisions of subpart F of the
regulations.
Sec. 500.6 Accuracy of information, statements and data.
Information, statements and data submitted in compliance with
provisions of the Act or these regulations are subject to title 18,
section 1001, of the United States Code, which provides:
Section 1001. Statements or entries generally.
Whoever, in any matter within the jurisdiction of any department or
agency of the United States knowingly and willfully falsifies, conceals
or covers up by any trick, scheme, or device a material fact, or makes
any false, fictitious or fraudulent statements or representations, or
makes or uses any false writing or document knowing the same to contain
any false, fictitious or fraudulent statement or entry, shall be fined
not more than $10,000 or imprisoned not more than five years, or both.
Sec. 500.7 Investigation authority of the Secretary.
(a) The Secretary, either pursuant to a complaint or otherwise,
shall, as may be appropriate, investigate and, in connection therewith,
enter and inspect such places (including housing and vehicles) and such
records (and make transcriptions thereof), question such persons and
gather such information as he deems necessary to determine compliance
with the Act, or these regulations.
(b) The Secretary may issue subpenas requiring the attendance and
testimony of witnesses or the production of any evidence in connection
with such investigations. The Secretary may administer oaths, examine
witnesses, and receive evidence. For the purpose of any hearing or
investigation provided for in the Act, the Authority contained in
sections 9 and 10 of the Federal Trade Commission Act (15 U.S.C. 49,
50), relating to the attendance of witnesses and the production of
books, papers, and documents, shall be available to the Secretary. The
Secretary shall conduct investigations in a manner which protects the
confidentiality of any complainant or other party who provides
information to the Secretary in good faith.
[[Page 14]]
(c) Any person may report a violation of the Act or these
regulations to the Secretary by advising any local office of the
Employment Service of the various States, or any office of the Wage and
Hour Division, Employment Standards Administration, U.S. Department of
Labor, or any other authorized representative of the Administrator. The
office or person receiving such a report shall refer it to the
appropriate office of the Wage and Hour Division, Employment Standards
Administration for the region or area in which the reported violation is
alleged to have occurred.
(d) In case of disobedience to a subpena, the Secretary may invoke
the aid of a United States District Court which is authorized to issue
an order requiring the person to obey such subpena.
Sec. 500.8 Prohibition on interference with Department of Labor
officials.
It is a violation of section 512(c) of the Act for any person to
unlawfully resist, oppose, impede, intimidate, or interfere with any
official of the Department of Labor assigned to perform an
investigation, inspection, or law enforcement function pursuant to the
Act during the performance of such
duties. (Other Federal statutes which prohibit persons from interfering
with a Federal officer in the course of official duties are found at 18
U.S.C. 111 and 18 U.S.C. 1114.)
Sec. 500.9 Discrimination prohibited.
(a) It is a violation of the Act for any person to intimidate,
threaten, restrain, coerce, blacklist, discharge, or in any manner
discriminate against any migrant or seasonal agricultural worker because
such worker has, with just cause:
(1) Filed a complaint with reference to the Act with the Secretary
of Labor; or
(2) Instituted or caused to be instituted any proceeding under or
related to the Act; or
(3) Testified or is about to testify in any proceeding under or
related to the Act; or
(4) Exercised or asserted on behalf of himself or others any right
or protection afforded by the Act.
(b) A migrant or seasonal agricultural worker who believes, with
just cause, that he has been discriminated against by any person in
violation of this section may, no later than 180 days after such
violation occurs, file a complaint with the Secretary alleging such
discrimination.
Sec. 500.10 Waiver of rights prohibited.
Any agreement by an employee purporting to waive or modify any
rights inuring to said person under the Act or these regulations shall
be void as contrary to public policy, except that a waiver or
modification of rights or obligations hereunder in favor of the
Secretary shall be valid for purposes of enforcement of the provisions
of the Act or these regulations. This does not prevent agreements to
settle private litigation.
Sec. 500.20 Definitions.
For purposes of this part:
(a) Administrator means the Administrator of the Wage and Hour
Division, Employment Standards Administration, United States Department
of Labor, and such authorized representatives as may be designated by
the Administrator to perform any of the functions of the Administrator
under this part.
(b) Administrative Law Judge means a person appointed as provided in
title 5 U.S.C. and qualified to preside at hearings under 5 U.S.C. 557.
Chief Administrative Law Judge means the Chief Administrative Law Judge,
United States Department of Labor, 800 K Street, NW., Suite 400,
Washington, DC 20001-8002.
(c) Agricultural association means any nonprofit or cooperative
association of farmers, growers, or ranchers, incorporated or qualified
under applicable State law, which recruits, solicits, hires, employs,
furnishes, or transports any migrant or seasonal agricultural worker.
(d) Agricultural employer means any person who owns or operates a
farm, ranch, processing establishment, cannery, gin, packing shed or
nursery, or who produces or conditions seed, and who either recruits,
solicits, hires, employs, furnishes, or transports any migrant or
seasonal agricultural worker.
[[Page 15]]
Produces seed means the planting, cultivation, growing and harvesting of
seeds of agricultural or horticultural commodities. Conditions seed
means the in-plant work done after seed production including the drying
and aerating of seed.
(e) Agricultural employment means employment in any service or
activity included within the provisions of section 3(f) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 203(f)), or section 3121(g) of
the Internal Revenue Code of 1954 (26 U.S.C. 3121(g)) and the handling,
planting, drying, packing, packaging, processing, freezing, or grading
prior to delivery for storage of any agricultural or horticultural
commodity in its unmanufactured state.
(f) Convicted means that a final judgment of guilty has been
rendered by a court of competent jurisdiction from which no opportunity
for appeal remains.
(g) Day-haul operation means the assembly of workers at a pick-up
point waiting to be hired and employed, transportation of such workers
to agricultural employment, and the return of such workers to a drop-off
point on the same day. This term does not include transportation
provided by an employer for individuals who are already employees at the
time they are picked up nor does it include carpooling arrangements by
such employees which are not specifically directed or requested by the
employer, farm labor contractor or agent thereof.
(h)(1) The term employ has the meaning given such term under section
3(g) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(g)) for the
purposes of implementing the requirements of that Act. As so defined,
employ includes to suffer or permit to work.
(2) The term employer is given its meaning as found in the Fair
Labor Standards Act. Employer under section 3(d) of that Act includes
any person acting directly or indirectly in the interest of an employer
in relation to an employee.
(3) The term employee is also given its meaning as found in the Fair
Labor Standards Act. Employee under section 3(e) of that Act means any
individual employed by an employer.
(4) The definition of the term employ may include consideration of
whether or not an independent contractor or employment relationship
exists under the Fair Labor Standards Act. Under MSPA, questions will
arise whether or not a farm labor contractor engaged by an agricultural
employer/association is a bona fide independent contractor or an
employee. Questions also arise whether or not the worker is a bona fide
independent contractor or an employee of the farm labor contractor and/
or the agricultural employer/association. These questions should be
resolved in accordance with the factors set out below and the principles
articulated by the federal courts in Rutherford Food Corp. v. McComb,
331 U.S. 722 (1947), Real v. Driscoll Strawberry Associates, Inc., 603
F.2d 748 (9th Cir. 1979), Sec'y of Labor, U.S. Dept. of Labor v.
Lauritzen, 835 F.2d 1529 (7th Cir. 1987), cert. denied, 488 U.S. 898
(1988); Beliz v. McLeod, 765 F.2d 1317 (5th Cir. 1985), and Castillo v.
Givens, 704 F.2d 181 (5th Cir.), cert. denied, 464 U.S. 850 (1983). If
it is determined that the farm labor contractor is an employee of the
agricultural employer/association, the agricultural workers in the farm
labor contractor's crew who perform work for the agricultural employer/
association are deemed to be employees of the agricultural employer/
association and an inquiry into joint employment is not necessary or
appropriate. In determining if the farm labor contractor or worker is an
employee or an independent contractor, the ultimate question is the
economic reality of the relationship--whether there is economic
dependence upon the agricultural employer/association or farm labor
contractor, as appropriate. Lauritzen at 1538; Beliz at 1329; Castillo
at 192; Real at 756. This determination is based upon an evaluation of
all of the circumstances, including the following:
(i) The nature and degree of the putative employer's control as to
the manner in which the work is performed;
(ii) The putative employee's opportunity for profit or loss
depending upon his/her managerial skill;
(iii) The putative employee's investment in equipment or materials
required for the task, or the putative employee's employment of other
workers;
[[Page 16]]
(iv) Whether the services rendered by the putative employee require
special skill;
(v) The degree of permanency and duration of the working
relationship;
(vi) The extent to which the services rendered by the putative
employee are an integral part of the putative employer's business.
(5) The definition of the term employ includes the joint employment
principles applicable under the Fair Labor Standards Act. The term joint
employment means a condition in which a single individual stands in the
relation of an employee to two or more persons at the same time. A
determination of whether the employment is to be considered joint
employment depends upon all the facts in the particular case. If the
facts establish that two or more persons are completely disassociated
with respect to the employment of a particular employee, a joint
employment situation does not exist. When the putative employers share
responsibility for activities set out in the following factors or in
other relevant facts, this is an indication that the putative employers
are not completely disassociated with respect to the employment and that
the agricultural worker may be economically dependent on both persons:
(i) If it is determined that a farm labor contractor is an
independent contractor, it still must be determined whether or not the
employees of the farm labor contractor are also jointly employed by the
agricultural employer/association. Joint employment under the Fair Labor
Standards Act is joint employment under the MSPA. Such joint employment
relationships, which are common in agriculture, have been addressed both
in the legislative history and by the courts.
(ii) The legislative history of the Act (H. Rep. No. 97-885, 97th
Cong., 2d Sess., 1982) states that the legislative purpose in enacting
MSPA was ``to reverse the historical pattern of abuse and exploitation
of migrant and seasonal farm workers * * *,'' which would only be
accomplished by ``advanc[ing] * * * a completely new approach'' (Rept.
at 3). Congress's incorporation of the FLSA term employ was undertaken
with the deliberate intent of adopting the FLSA joint employer doctrine
as the ``central foundation'' of MSPA and ``the best means by which to
insure that the purposes of this MSPA would be fulfilled'' (Rept. at 6).
Further, Congress intended that the joint employer test under MSPA be
the formulation as set forth in Hodgson v. Griffin & Brand of McAllen,
Inc. 471 F.2d 235 (5th Cir.), cert. denied, 414 U.S. 819 (1973) (Rept.
at 7). In endorsing Griffin & Brand, Congress stated that this
formulation should be controlling in situations ``where an agricultural
employer * * * asserts that the agricultural workers in question are the
sole employees of an independent contractor/crewleader,'' and that the
``decision makes clear that even if a farm labor contractor is found to
be a bona fide independent contractor, * * * this status does not as a
matter of law negate the possibility that an agricultural employer may
be a joint employer * * * of the harvest workers'' together with the
farm labor contractor. Further, regarding the joint employer doctrine
and the Griffin & Brand formulation, Congress stated that ``the absence
of evidence on any of the criteria listed does not preclude a finding
that an agricultural association or agricultural employer was a joint
employer along with the crewleader'', and that ``it is expected that the
special aspects of agricultural employment be kept in mind'' when
applying the tests and criteria set forth in the case law and
legislative history (Rept. at 8).
(iii) In determining whether or not an employment relationship
exists between the agricultural employer/association and the
agricultural worker, the ultimate question to be determined is the
economic reality--whether the worker is so economically dependent upon
the agricultural employer/association as to be considered its employee.
(iv) The factors set forth in paragraphs (h)(5)(iv)(A) through (G)
of this section are analytical tools to be used in determining the
ultimate question of economic dependency. The consideration of each
factor, as well as the determination of the ultimate question of
economic dependency, is a qualitative rather than quantitative analysis.
The factors are not to be applied as a
[[Page 17]]
checklist. No one factor will be dispositive of the ultimate question;
nor must a majority or particular combination of factors be found for an
employment relationship to exist. The analysis as to the existence of an
employment relationship is not a strict liability or per se
determination under which any agricultural employer/association would be
found to be an employer merely by retaining or benefiting from the
services of a farm labor contractor. The factors set forth in paragraphs
(h)(5)(iv)(A) through (G) of this section are illustrative only and are
not intended to be exhaustive; other factors may be significant and, if
so, should be considered, depending upon the specific circumstances of
the relationship among the parties. How the factors are weighed depends
upon all of the facts and circumstances. Among the factors to be
considered in determining whether or not an employment relationship
exists are:
(A) Whether the agricultural employer/association has the power,
either alone or through control of the farm labor contractor to direct,
control, or supervise the worker(s) or the work performed (such control
may be either direct or indirect, taking into account the nature of the
work performed and a reasonable degree of contract performance oversight
and coordination with third parties);
(B) Whether the agricultural employer/association has the power,
either alone or in addition to another employer, directly or indirectly,
to hire or fire, modify the employment conditions, or determine the pay
rates or the methods of wage payment for the worker(s);
(C) The degree of permanency and duration of the relationship of the
parties, in the context of the agricultural activity at issue;
(D) The extent to which the services rendered by the worker(s) are
repetitive, rote tasks requiring skills which are acquired with
relatively little training;
(E) Whether the activities performed by the worker(s) are an
integral part of the overall business operation of the agricultural
employer/association;
(F) Whether the work is performed on the agricultural employer/
association's premises, rather than on premises owned or controlled by
another business entity; and
(G) Whether the agricultural employer/association undertakes
responsibilities in relation to the worker(s) which are commonly
performed by employers, such as preparing and/or making payroll records,
preparing and/or issuing pay checks, paying FICA taxes, providing
workers' compensation insurance, providing field sanitation facilities,
housing or transportation, or providing tools and equipment or materials
required for the job (taking into account the amount of the investment).
(i) Farm labor contracting activity means recruiting, soliciting,
hiring, employing, furnishing, or transporting any migrant or seasonal
agricultural worker.
(j) Farm labor contractor means any person--other than an
agricultural employer, an agricultural association, or an employee of an
agricultural employer or agricultural association--who, for any money or
other valuable consideration paid or promised to be paid, performs any
farm labor contracting activity.
(k) Farm Labor Contractor Certificate of Registration or Certificate
of Registration means the certificate issued by the Administrator which
permits a farm labor contractor to engage in farm labor contracting
activities.
(l) Farm labor contractor employee who is required to obtain a
Certificate of Registration as an employee of a farm labor contractor
means a person who performs farm labor contracting activity solely on
behalf of a farm labor contractor holding a valid Certificate of
Registration and is not an independent farm labor contractor who would
be required to register under the Act in his own right.
(m) Farm Labor Contractor Employee Certificate or Farm Labor
Contractor Employee Certificate of Registration or Employee Certificate
means the certificate issued by the Administrator to an employee of a
farm labor contractor authorizing the performance of farm labor
contracting activities solely on behalf of such farm labor contractor
and not as an independent farm labor
[[Page 18]]
contractor who would be required to register in his own right.
(n) Illegal alien means any person who is not lawfully admitted for
permanent residence in the United States or who has not been authorized
by the Attorney General to accept employment in the United States.
(o) Immediate family includes only:
(1) A spouse;
(2) Children, stepchildren, and foster children;
(3) Parents, stepparents, and foster parents; and
(4) Brothers and sisters.
(p) Migrant agricultural worker means an individual who is employed
in agricultural employment of a seasonal or other temporary nature, and
who is required to be absent overnight from his permanent place of
residence.
(1) Migrant agricultural worker does not include:
(i) Any immediate family member of an agricultural employer or a
farm labor contractor; or
(ii) Any temporary nonimmigrant alien who is authorized to work in
agricultural employment in the United States under sections
101(a)(15)(H)(ii)(a) and 214(c) of the Immigration and Nationality Act.
(2) Permanent place of residence, with respect to an individual,
means a domicile or permanent home. Permanent place of residence does
not include seasonal or temporary housing such as a labor camp. The term
permanent place of residence for any nonimmigrant alien is that
individual's country of origin.
(q) Person means any individual, partnership, association, joint
stock company, trust, cooperative, or corporation.
(r) Seasonal agricultural worker means an individual who is employed
in agricultural employment of a seasonal or other temporary nature and
is not required to be absent overnight from his permanent place of
residence:
(1) When employed on a farm or ranch performing field work related
to planting, cultivating, or harvesting operations; or
(2) When employed in canning, packing, ginning, seed conditioning or
related research, or processing operations, and transported, or caused
to be transported, to or from the place of employment by means of a day-
haul operation.
(i) Seasonal agricultural worker does not include:
(A) Any migrant agricultural worker;
(B) Any immediate family member of an agricultural employer or a
farm labor contractor; or
(C) Any temporary nonimmigrant alien who is authorized to work in
agricultural employment in the United States under sections
101(a)(15)(H)(ii)(a) and 214(c) of the Immigration and Nationality Act.
(ii) Field work related to planting, cultivating or harvesting
operations includes all farming operations on a farm or ranch which are
normally required to plant, harvest or produce agricultural or
horticultural commodities, including the production of a commodity which
normally occurs in the fields of a farm or ranch as opposed to those
activities which generally occur in a processing plant or packing shed.
A worker engaged in the placing of commodities in a container in the
field and on-field loading of trucks and similar transports is included.
Nursery, mushroom and similar workers engaged in activities in
connection with planting, cultivating or harvesting operations are
intended to be covered. An individual operating a machine, such as a
picker, or tractor is not included when performing such activity.
(s) On a seasonal or other temporary basis means:
(1) Labor is performed on a seasonal basis where, ordinarily, the
employment pertains to or is of the kind exclusively performed at
certain seasons or periods of the year and which, from its nature, may
not be continuous or carried on throughout the year. A worker who moves
from one seasonal activity to another, while employed in agriculture or
performing agricultural labor, is employed on a seasonal basis even
though he may continue to be employed during a major portion of the
year.
(2) A worker is employed on other temporary basis where he is
employed for a limited time only or his performance is contemplated for
a particular piece of work, usually of short duration. Generally,
employment, which is
[[Page 19]]
contemplated to continue indefinitely, is not temporary.
(3) On a seasonal or other temporary basis does not include the
employment of any foreman or other supervisory employee who is employed
by a specific agricultural employer or agricultural association
essentially on a year round basis.
(4) On a seasonal or other temporary basis does not include the
employment of any worker who is living at his permanent place of
residence, when that worker is employed by a specific agricultural
employer or agricultural association on essentially a year round basis
to perform a variety of tasks for his employer and is not primarily
employed to do field work.
(t) Secretary means the Secretary of Labor or the Secretary's
authorized representative.
(u)(1) Solicitor of Labor means the Solicitor, United States
Department of Labor, and includes attorneys designated by the Solicitor
to perform functions of the Solicitor under these regulations.
(2) Associate Solicitor for Fair Labor Standards means the Associate
Solicitor, who, among other duties, is in charge of litigation for the
Migrant and Seasonal Agricultural Worker Protection Act (MSPA), Office
of the Solicitor, U.S. Department of Labor, Washington, DC 20210.
(3) Regional Solicitors means the attorneys in charge of the various
regional offices of the Office of the Solicitor.
(v) State means any of the States of the United States, the District
of Columbia, the Virgin Islands, the Commonwealth of Puerto Rico, and
Guam. State agency means a State agency vested with all powers necessary
to cooperate with the U.S.
Department of Labor for purposes of entering into agreements to carry
out the Act as provided in section 513 thereof.
(w) Temporary nonimmigrant alien means a person who has a residence
in a foreign country which he does not intend to abandon and who comes
temporarily to the United States, with approval of the Attorney General,
to perform temporary service or labor.
(x) The Wagner-Peyser Act is the Act of June 6, 1933 (48 Stat. 113;
codified in 29 U.S.C. 49 et seq.), providing, inter alia, for the
establishment of the U.S. Employment Service. Employment Service of the
various States means a State agency vested with all powers necessary to
cooperate with the U.S. Employment Service under the Wagner-Peyser Act.
(y) The Immigration and Nationality Act (INA) as amended by the
Immigration Reform and Control Act of 1986 (IRCA) to effectively control
unauthorized immigration to the United States and for other purposes, is
set out in 8 U.S.C. 1101 et seq.
[48 FR 36741, Aug. 12, 1983; 48 FR 38374, Aug. 23, 1983, as amended at
54 FR 13329, Mar. 31, 1989; 56 FR 54708, Oct. 22, 1991; 62 FR 11747,
Mar. 12, 1997]
Applicability of the Act: Exemptions
Sec. 500.30 Persons not subject to the Act.
(a) Family business exemption. Any individual who engages in a farm
labor contracting activity on behalf of a farm, processing
establishment, seed conditioning establishment, cannery, gin, packing
shed, or nursery, which is owned or operated exclusively by such
individual or an immediate family member of such individual, if such
activities are performed only for such operation and exclusively by such
individual or an immediate family member, but without regard to whether
such individual has incorporated or otherwise organized for business
purposes.
(b) Small business exemption. Any person, other than a farm labor
contractor, for whom the man-days exemption for agricultural labor
provided under section 13(a)(6)(A) of the Fair Labor Standards Act of
1938 (29 U.S.C. 213(a)(6)(A)) is applicable. That exemption applies to
an agricultural employer who did not, during any calendar quarter of the
preceding calendar year, use more man-days of agricultural labor than
the limit specified under that statute.
(1) Currently the limit for exemption is 500 man-days.
(2) A man-day means any day during which an employee performs
agricultural labor for not less than one (1)
[[Page 20]]
hour. Agricultural labor performed by an employer's parent, spouse,
child, or other member of his immediate family, i.e., step-children,
foster children, step-parents and foster parents, brothers, and sisters
is not counted as man-days.
(3) The man-days of agricultural labor rendered in a joint
employment relationship are counted toward the man-days of such labor of
each employer for purposes of the man-day test of this exemption.
(c) Common carriers. Any common carrier which would be a farm labor
contractor solely because the carrier is engaged in the farm labor
contracting activity of transporting any migrant or seasonal
agricultural worker. A ``common carrier'' by motor vehicle is one which
holds itself out to the general public to engage in transportation of
passengers for hire, whether over regular or irregular routes, and which
holds a valid certificate of authorization for such purposes from an
appropriate local, State or Federal agency.
(d) Labor organizations. Any labor organization, as defined in
section 2(5) of the Labor Management Relations Act (29 U.S.C. 152(5))
(without regard to the exclusion of agricultural employees in that Act)
or as defined under applicable State labor relations law.
(e) Nonprofit charitable organizations. Any nonprofit charitable
organization or public or private nonprofit educational institution.
(f) Local short-term contracting activity. Any person who engages in
any farm labor contracting activity solely within a twenty-five mile
intrastate radius of such person's permanent place of residence and for
not more than thirteen weeks per year.
(1) Twenty-five mile intrastate radius as used in section 4(a)(3)(D)
of the Act means that engagement in a farm labor contracting activity
may not go beyond a twenty-five mile intrastate geographical radius.
Once this limit is transcended, the exemption no longer applies and the
person becomes subject to the requirements of the Act. If, for example,
a person or his employee solicits workers from a distance greater than
twenty-five miles from his permanent residence or from across a State
line, then the person has engaged in a named activity outside of the
permitted scope of the exemption, and is subject to the requirements of
the Act. A person who uses lines of communication (such as U.S. Mail,
telephone, or advertising) to recruit, solicit, hire, or furnish workers
over a distance greater than twenty-five miles from his permanent
residence or from across a State line for agricultural employment is
also engaged in a named activity beyond the specified limit of the
exemption and is subject to the Act. In the case of a corporation its
permanent place of residence for these purposes shall be a single
designated location.
(2) For not more than thirteen weeks per year as used in section
4(a)(3)(D) of the Act means that farm labor contracting activities may
not be engaged in for more than thirteen weeks in a year. This does not
mean, however,
that persons who engage in intrastate and short-range farm labor
contracting activities are exempt for the first thirteen weeks of their
farm labor contracting activities each year. The number of weeks of
contracting activity during the prior year is also a factor. When the
limit of weeks for the exemption is exceeded in a calendar year, the
person is subject immediately to the Act and is also presumed subject to
the Act in the next calendar year, unless it can be shown that the tests
of section 4(a)(3)(D) are met.
(g) Custom combine. Any custom combine, hay harvesting, or sheep
shearing operation. Custom combine, hay harvesting, and sheep shearing
operation means the agricultural services and activities involved in
combining grain, harvesting hay and shearing sheep which are provided to
a farmer on a contract basis by a person who provides the necessary
equipment and labor and who specializes on providing such services and
activities.
(h) Custom poultry operations. Any custom poultry harvesting,
breeding, debeaking, desexing, or health service operation, provided the
employees of the operation are not regularly required to be away from
their permanent place of residence other than during their normal
working hours.
(i) Seed production exemption. (1) Any person whose principal
occupation or
[[Page 21]]
business is not agricultural employment, when supplying full-time
students or other individuals whose principal occupation is not
agricultural employment to detassel, rogue, or otherwise engage in the
production of seed and to engage in related and incidental agricultural
employment, unless such full-time students or other individuals are
required to be away from their permanent place of residence overnight or
there are individuals under eighteen years of age who are providing
transportation on behalf of such person.
(2) Any person to the extent he is supplied with students or other
individuals for agricultural employment in accordance with paragraph
(i)(1) of this section by a person who is exempt thereunder.
(j) Shade grown tobacco. (1) Any person whose principal occupation
or business is not agricultural employment, when supplying full-time
students or other individuals whose principal occupation is not
agricultural employment to string or harvest shade grown tobacco and to
engage in related and incidental agricultural employment, unless there
are individuals under eighteen years of age who are providing
transportation on behalf of such person.
(2) Any person to the extent he is supplied with students or other
individuals for agricultural employment is accordance with paragraph
(j)(1) of this section by a person who is exempt thereunder.
(k) Employees of exempt employers. Any employee of any person
described in paragraphs (c) through (j) of this section when performing
farm labor contracting activities within the scope of such exemptions
and exclusively for such person.
Subpart B_Registration of Farm Labor Contractors and Employees of Farm
Labor Contractors Engaged in Farm Labor Contracting Activities
Registration Requirements; General
Sec. 500.40 Registration in general.
Any person who desires to engage in any activity as a farm labor
contractor, as defined in the Act and these regulations, and is not
exempt, is required first to obtain a Certificate of Registration
authorizing each such activity. Any employee of a registered farm labor
contractor who performs farm labor contracting activities solely on
behalf of such contractor, and who is not an independent contractor,
must obtain a Farm Labor Contractor Employee Certificate of Registration
authorizing each such activity. The employee's certificate must show the
name of the farm labor contractor for whom the activities are to be
performed. The contractor whose name appears on the employee's
certificate must hold a valid Certificate of Registration covering the
entire period shown on the employee's certificate.
Sec. 500.41 Farm labor contractor is responsible for actions of his
farm labor contractor employee.
(a) A farm labor contractor is responsible for assuring that every
employee who is performing farm labor contracting activities on behalf
of such contractor has obtained either a Farm Labor Contractor Employee
Certificate of Registration or a Certificate of Registration as an
independent farm labor contractor, as required by the Act and these
regulations, prior to such employee's engagement in any activity
enumerated in section 3(6) of the Act. A farm labor contractor who
utilizes the services of another farm labor contractor who is not his
employee must also comply with the provisions of Sec. 500.71. The farm
labor contractor is responsible for any violations of the Act or these
regulations committed by his employee, whether or not the employee has
registered as required by the Act.
(b) A Farm Labor Contractor Employee Certificate of Registration is
valid only during the period in which the holder is an employee of the
registered farm labor contractor named on the Farm Labor Contractor
Employee Certificate. If prior to the expiration of the Employee
Certificate, the holder, through a change in employment, should become
an employee of a different registered farm labor contractor, a
replacement Employee Certificate which names the new employer may be
obtained by submitting to the
[[Page 22]]
regional office that issued the original employee certificate or to any
regional office of the Wage and Hour Division, Employment Standards
Administration, a written statement that includes the date of the change
in employment status and the name, the permanent place of residence and
certificate registration number of the new employer. Any such change
should be reported immediately.
Sec. 500.42 Certificate of Registration to be carried and exhibited.
Each registered farm labor contractor and registered farm labor
contractor employee shall carry at all times while engaging in farm
labor contracting activities, a Certificate of Registration or a Farm
Labor Contractor Employee Certificate as appropriate and, upon request,
shall exhibit that certificate to representatives of the U.S. Department
of Labor and State Employment Service Agencies and to all persons with
whom he intends to deal as a farm labor contractor or farm labor
contractor employee.
Sec. 500.43 Effect of failure to produce certificate.
The facilities and the services authorized by the Wagner-Peyser Act
shall be denied to any farm labor contractor upon refusal or failure to
produce, when asked, a Certificate of Registration. Services shall be
provided upon presentation of a valid Certificate of Registration.
Applications and Renewal of Farm Labor Contractor and Farm Labor
Contractor Employee Certificates
Sec. 500.44 Form of application.
An application for issuance or renewal of a Farm Labor Contractor
Certificate of Registration or Farm Labor Contractor Employee
Certificate shall be made on forms designated by the Secretary.
Sec. 500.45 Contents of application.
The application shall set forth the information required thereon
which shall include the following:
(a) A declaration, subscribed and sworn to by the applicant, stating
the applicant's permanent place of residence, the farm labor contracting
activities for which the certificate is requested, and the address to
which official documents should be mailed;
(b) A statement identifying each vehicle to be used to transport any
migrant or seasonal agricultural worker and, if the vehicle is or will
be owned or controlled by the applicant, documentation showing that the
applicant for a Farm Labor Contractor Certificate of Registration is in
compliance with the requirements of section 401 of the Act with respect
to each such vehicle;
(c) A statement identifying each facility or real property to be
used to house any migrant agricultural worker and, if the facility or
real property is or will be owned or controlled by the applicant,
documentation showing that the applicant for a Farm Labor Contractor
Certificate of Registration is in compliance with section 203 of the Act
with respect to each such facility or real property;
(d) A set of fingerprints of the applicant on Form FD 258 as
prescribed by the U.S. Department of Justice;
(e) A declaration, subscribed and sworn to by the applicant,
consenting to the designation by a court of the Secretary as an agent
available to accept service of summons in any action against the
applicant, if the applicant has left the jurisdiction in which the
action is commenced or otherwise has become unavailable to accept
service; and
(f) Such other relevant information as the Secretary may require.
Sec. 500.46 Filing an application.
Registration under the Act is required whether or not licensing or
registration is required under State law.
Sec. 500.47 Place for filing application.
Application forms may be filed in any State Employment Service
Office or in any office of the Wage and Hour Division, U.S. Department
of Labor.
Action on Application
Sec. 500.48 Issuance of certificate.
The Administrator or authorized representative shall:
[[Page 23]]
(a) Review each application received and determine whether such
application is complete and properly executed;
(b) When appropriate, notify the applicant in writing of any
incompleteness or error in the application and return the application
for correction and completion;
(c) Determine, after appropriate investigation, whether the
applicant has complied with the requirements of the Act and these
regulations, and if appropriate, issue a Certificate of
Registration or a Farm Labor Contractor Employee Certificate of
Registration authorizing the performance of one or more activities
permitted under the Act;
(d) Authorize the activity of transporting a migrant or seasonal
agricultural worker, subject to the maximum number of workers authorized
to be transported under the vehicle liability policy and as indicated on
the face of the Certificate of Registration, only upon receipt of:
(1) A statement in the manner prescribed by the Secretary
identifying each vehicle to be used, or caused to be used, by the
applicant for the transportation of any migrant or seasonal agricultural
worker during the period for which registration is sought;
(2) Written proof that every such vehicle which is under the
applicant's ownership or control, is in compliance with the vehicle
safety requirements of the Act and these regulations; and
(3) Written proof that every such vehicle is in compliance with the
insurance requirements of the Act and these regulations;
(e) Authorize the activity of driving a vehicle to transport a
migrant or seasonal agricultural worker only upon receipt of (1) A
doctor's certificate on the prescribed form, with an initial application
for a Certificate of Registration or a Farm Labor Contractor Employee
Certificate, and, when applying for a renewal, a new completed doctor's
certificate if the previous doctor's certificate is more than three
years old; and (2) evidence of a valid and appropriate license, as
provided by State law, to operate the vehicle; and
(f) Authorize the activity of housing a migrant agricultural worker
only upon receipt of (1) A statement identifying each facility or real
property to be used for housing a migrant agricultural worker during the
period for which registration is sought; and (2) if the facility or real
property is or will be owned or controlled by the applicant, written
proof that the facility or real property complies with the applicable
Federal and State standards of health and safety. Such written proof may
be either a certification issued by a State or local health authority or
other appropriate agency, or a copy of a written request for the
inspection of a facility or real property made to the appropriate State
or local agency at least forty-five days prior to the date on which the
facility or real property is to be occupied by migrant agricultural
workers, dated and signed by the applicant or other person who owns or
controls the facility or real property. If housing authorization is
issued based on a written request for inspection and the housing
facility or real property is subsequently inspected and does not meet
the appropriate standards, the housing authorization is null and void.
Should the required written proof for housing authorization be
unavailable at the time of filing an application, the applicant must
attest in writing that the applicant will not house any migrant
agricultural worker in any facility or real property owned or controlled
by the applicant, until such applicant shall have submitted all
necessary written proof and obtained a Farm Labor Contractor Certificate
of Registration showing that housing in the facility or real property is
authorized by the Secretary of Labor. In such event, if otherwise
eligible, the applicant will be issued a Certificate of Registration
without a housing authorization. This certificate may be amended to
include an authorization to house at such time as the required proof is
forthcoming.
[48 FR 36741, Aug. 12, 1983, as amended at 61 FR 24865, May 16, 1996]
Sec. 500.50 Duration of certificate.
(a) Initial certificates of farm labor contractors and farm labor
contractor employees. (1) An initial certificate issued under the Act
and these regulations shall expire twelve months from the
[[Page 24]]
date of issuance unless earlier suspended or revoked.
(2) Certificates applied for during the period beginning April 14,
1983, and ending November 30, 1983, may be issued for a period of up to
twenty-four months for the purpose of an orderly transition to
registration under the Act.
(3) Certificates issued to employees of farm labor contractors shall
expire at the suspension, revocation or expiration of the farm labor
contractor's Certificate of Registration under which such employee was
authorized.
(b) Certificate renewal of farm labor contractors and farm labor
contractor employees. (1) A certificate issued under the Act and these
regulations may be temporarily extended by the filing of a properly
completed and signed application with the Secretary at least thirty days
prior to the expiration date. ``Filing'' may be accomplished by hand
delivery, certified mail, or regular mail.
(i) If the application for renewal is filed by regular mail or if it
is delivered in person by the applicant, it must be received by the
Department of Labor or an authorized representative of the Department of
Labor at least 30 days prior to the expiration date shown on the current
certificate.
(ii) If the application for renewal is filed by certified mail, it
must be mailed at least 30 days prior to the expiration date shown on
the current certificate.
Where timely application for renewal has been filed, the authority to
operate pursuant to a valid certificate under the Act and these
regulations shall continue until the renewal application has been
finally determined by the Secretary.
(2) A certificate issued under the Act and these regulations may be
renewed by the Secretary for additional twelve-month periods or for
periods in excess of twelve months but not in excess of twenty-four
months.
(3) Eligibility for renewals of certificates for more than twelve
months under the Act and these regulations shall be limited to those
farm labor contractors and farm labor contractor employees who have not
been cited during the preceding five years for a violation of the Act or
any regulation under the Act, or the Farm Labor Contractor Registration
Act or any regulation under such Act.
(c) Continuation of certain FLCRA certificates. (1) Certificates
issued under FLCRA, and in effect on April 14, 1983, that are valid for
the services performed under FLCRA, will be continued in effect and be
accepted as authorization to perform like services under the Act and
these regulations for the remainder of calendar year 1983. Such
certificates will be subject to the Act and these regulations with
respect to determinations to suspend, revoke or refuse renewal.
(2) Actions pending related to the suspension, revocation, or
refusal to issue or renew FLCRA certificates shall continue through to a
final determination. Any such certificate which is considered to be in
effect under title 29 CFR 40.21 pending a final determination, will be
considered valid under MSPA, provided application for a certificate
under MSPA is made no later than November 30, 1983.
[48 FR 36741, Aug. 12, 1983, as amended at 54 FR 13329, Mar. 31, 1989]
Sec. 500.51 Refusal to issue or to renew, or suspension or revocation
of certificate.
The Secretary may suspend or revoke or refuse to issue or to renew a
Certificate of Registration (including a Farm Labor Contractor Employee
Certificate) if the applicant or holder:
(a) Has knowingly made any misrepresentation in the application for
such certificate;
(b) Is not the real party in interest in the application or
Certificate of Registration and the real party in interest is a person
who has been refused issuance or renewal of a certificate, has had a
certificate suspended or revoked, or does not qualify under this section
for a certificate;
(c) Has failed to comply with the Act or these regulations;
(d) Has failed to pay any court judgment obtained by the Secretary
or any other person under the Act or these regulations or under the Farm
Labor Contractor Registration Act of 1963 or any regulation under such
Act;
(e) Has failed to comply with any final order issued by the
Secretary as a
[[Page 25]]
result of a violation of the Act or these regulations or a violation of
the Farm Labor Contractor Registration Act of 1963 or any regulation
under such Act;
(f) Has been convicted within the preceding five years:
(1) Of any crime under State or Federal law relating to gambling, or
to the sale, distribution or possession of alcoholic beverages, in
connection with or incident to any farm labor contracting activities, or
(2) Of any felony under State or Federal law involving robbery,
bribery, extortion, embezzlement, grand larceny, burglary, arson,
violation of narcotics laws, murder, rape, assault with intent to kill,
assault which inflicts grievous bodily injury, prostitution, peonage, or
smuggling or harboring individuals who have entered the United States
illegally.
(g) Has been found to have violated paragraph (1) or (2) of section
274A(a) of the Immigration and Nationality Act (INA) by hiring,
recruiting, or referring for a fee, for employment in the United States,
(1) An alien knowing the alien is an unauthorized alien as defined in
section 274A(h)(3) of INA with respect to such employment, or (2) an
individual without complying with the requirements concerning
verification of the person's identity and employment authorization as
stated in section 274A(b) of INA.
[48 FR 36741, Aug. 12, 1983, as amended at 54 FR 13329, Mar. 31, 1989]
Sec. 500.52 Right to hearing.
Any applicant or holder who desires an administrative hearing on the
determination to refuse to issue or to renew, or to suspend or to
revoke, a Certificate of Registration or a Farm Labor Contractor
Employee Certificate of Registration, shall make a request in accordance
with Sec. 500.212, no later than thirty (30) days after service of the
notice referred to in Sec. 500.210.
Sec. 500.53 Nontransfer of certificate.
A Certificate of Registration may not be transferred or assigned.
Sec. 500.54 Change of address.
During the period for which the Certificate of Registration or
Employee Certificate is in effect, each farm labor contractor or farm
labor contractor employee shall provide to the Secretary, within thirty
(30) days, a notice of each change of permanent place of residence in
accordance with Sec. 500.215.
Sec. 500.55 Changes to or amendments of certificate authority.
(a) During the period for which the Certificate of Registration is
in effect, a farm labor contractor must apply to the Secretary to amend
the Certificate of Registration whenever he intends to:
(1) Engage in another farm labor contracting activity;
(2) Use, or cause to be used, another vehicle than that covered by
the certificate to transport any migrant or seasonal agricultural
worker; or
(3) Use, or cause to be used, another real property or facility to
house any migrant agricultural worker than that covered by the
certificate.
(b) Whenever another vehicle or housing facility or real property is
or will be owned, operated, or controlled by the farm labor contractor,
the farm labor contractor must submit the appropriate information to
obtain transportation, driving or housing authorization, as applicable,
as described in Sec. 500.48, within 10 days after the contractor
obtains or learns of the intended use of such vehicle or housing
facility or real property.
(c) Notwithstanding submission of the appropriate information, the
farm labor contractor must comply with all
applicable motor safety, insurance, and housing safety and health
provisions of the Act and these regulations. With regard to housing, the
farm labor contractor must submit the appropriate housing documentation
as well as comply with the housing safety and health provisions of the
Act and these regulations, prior to occupancy by a migrant agricultural
worker.
Sec. 500.56 Replacement of Certificate of Registration or Farm Labor
Contractor Employee Certificate.
If a Certificate of Registration or a Farm Labor Contractor Employee
Certificate is lost or destroyed, a duplicate certificate may be
obtained by the submission to the regional office that issued it or to
any regional office of the Wage and Hour Division, Employment
[[Page 26]]
Standards Administration, of a written statement explaining its loss or
destruction, indicating where the original application was filed and
requesting that a duplicate be issued.
Additional Obligations of Farm Labor Contractors and Farm Labor
Contractor Employees
Sec. 500.60 Farm labor contractors' recruitment, contractual and general
obligations.
The Act imposes certain specific recruitment, contractual and
general obligations on farm labor contractors and farm labor contractor
employees. The contractor is responsible for any violations under the
Act committed by his employee. Each of the following obligations applies
to both farm labor contractors and farm labor contractor employees.
(a) Each farm labor contractor shall provide to any other farm labor
contractor and to any agricultural employer and agricultural association
to which such farm labor contractor has furnished any migrant or
seasonal agricultural worker, copies of all records for that place of
employment which such farm labor contractor is required to retain for
each worker furnished or supplied. The recipient of these records shall
keep them for a period of three years.
(b) Each farm labor contractor, without regard to any other
provisions of this Act, shall obtain at each place of employment and
make available for inspection to every worker he furnishes for
employment, a written statement of the conditions of such employment as
described in sections 201(b) and 301(b) of the Act and Sec. Sec. 500.75
and 500.76 of these regulations. As with the written disclosure
statements under Sec. Sec. 500.76 and 500.77, these statements must be
provided to the workers in English or, as necessary and reasonable, in
Spanish or another language common to migrant or seasonal agricultural
workers who are not fluent in English.
(c)(1) No farm labor contractor shall violate, without
justification, the terms of any written agreements made with an
agricultural employer or an agricultural association pertaining to any
contracting activity or worker protection under the Act. Normally,
``without justification'' would not include situations in which failure
to comply with the terms of any written agreements was directly
attributable to Acts of God, due to conditions beyond the control of the
person or to conditions which he could not reasonably foresee.
(2) Written agreements do not relieve a farm labor contractor of any
responsibility that such contractor would otherwise have under the Act
and these regulations.
(d) All payroll records made by the farm labor contractor must be
retained by him for a period of three years.
Sec. 500.61 Farm labor contractors must comply with all worker
protections and all other statutory provisions.
Every farm labor contractor must comply with all of the provisions
of titles I through V of the Act and all of the subparts of these
regulations, unless subject to a specific statutory exemption. In
addition to complying with all of the standards stated in subparts A and
B of these regulations, every farm labor contractor must comply with
each provision stated in subpart C and the motor vehicle safety and
insurance and housing standards stated in subpart D.
Sec. 500.62 Obligations of a person holding a valid Farm Labor
Contractor Employee Certificate of Registration.
Any person holding a valid Farm Labor Contractor Employee
Certificate of Registration in accordance with the Act and these
regulations is required to comply with the Act and these regulations to
the same extent as if said person had been required to obtain a
Certificate of Registration in such person's own name as a farm labor
contractor.
Subpart C_Worker Protections
General
Sec. 500.70 Scope of worker protections.
(a) General. The Act provides protections for migrant and seasonal
agricultural workers irrespective of whether
[[Page 27]]
they are employed by a farm labor contractor, an agricultural employer
or an agricultural association, or, in the case where there is joint
responsibility, by more than one of these persons. The Act's provisions
include standards relating to vehicle safety, housing safety and health,
disclosure of wages, hours and other conditions of employment, and
recordkeeping. When any person not otherwise exempt from the Act
recruits, solicits, hires, employs, furnishes or transports workers,
that person is required to comply with the applicable protective
provisions of the Act. In addition, any person not specifically exempt
from coverage of the Act (irrespective of whether that person is an
agricultural employer, an agricultural association or farm labor
contractor) who owns or controls a facility or real property which is
used as housing for any migrant agricultural workers must ensure that
the facility or real property complies with all substantive Federal and
State safety and health standards made applicable to that type of
housing. (See Sec. 500.132)
(b) Wage related protections. Joint employment under the Fair Labor
Standards Act, which establishes responsibility for the maintenance of
payroll records, payment of wages and posting of notices under that law,
is joint employment under MSPA for establishing responsibility for the
maintenance of records, payment of wages and the posting of required
posters under MSPA. In such joint employment situations the
responsibility for assuring these MSPA protections may be carried out by
one of the joint employers. While under a joint employment relationship
all joint employers are equally responsible for assuring that the
appropriate protections are provided, the creation of such a joint
employment relationship does not also require unnecessary duplication of
effort as, for example, in relation to the posting of posters (see
Sec. Sec. 500.75(e) and 500.76(e)) or the provision of an itemized
written statement of the worker's pay (see Sec. 500.80(d)). Failure to
provide protections coming within the joint employment relationship,
however, will result in all joint employers being responsible for that
failure.
(c) Transportation related protections. Responsibility for
compliance with the motor vehicle safety and insurance provisions of
section 401 of the Act and Sec. Sec. 500.100 through 500.128 of these
regulations is imposed upon the person or persons using or causing to be
used, any vehicle for transportation of migrant or seasonal agricultural
workers. As stated in these regulations, the transportation safety
provisions do not include certain car pooling arrangements.
Additionally, these regulations do not impose responsibility on an
agricultural employer or agricultural association for a farm labor
contractor's failure to adhere to the safety provisions provided in
these regulations when the farm labor contractor is providing the
vehicles and directing their use. However, when an agricultural employer
or agricultural association specifically directs or requests a farm
labor contractor to use the contractor's vehicle to carry out a task for
the agricultural employer or agricultural association, such direction
constitutes causing the vehicle to be used and the agricultural employer
or agricultural association is jointly responsible with the farm labor
contractor for assuring that the vehicle meets the insurance, and safety
and health provisions of these regulations. In all cases a person using
a farm labor contractor is required to take reasonable steps to
determine that the vehicle used by the farm labor contractor is
authorized to be used for transportation as prescribed in section 402 of
the Act and Sec. 500.71 of these regulations.
(d) Housing related protections. Responsibility for compliance with
the housing safety and health provisions of section 203 of the Act and
Sec. Sec. 500.130 through 500.135 of these regulations is imposed upon
the person (or persons) who owns or controls a facility or real property
used as housing for migrant agricultural workers. Any agricultural
employer or agricultural association which has a farm labor contractor
operate housing which it owns or controls is responsible, as well as the
farm labor contractor, for insuring compliance with the housing safety
and health provisions of these regulations. When the owner or operator
of the housing is not an agricultural employer, agricultural
[[Page 28]]
association or farm labor contractor, the owner is responsible for that
housing meeting the safety and health provisions under the Act and these
regulations. This is subject to the exclusion stated in Sec. 500.131 of
these regulations which provides that the housing safety and health
requirements do not apply to any person who, in the ordinary course of
that person's business, regularly provides housing on a commercial basis
to the general public and who provides housing to any migrant
agricultural worker of the same character and on the same or comparable
terms and conditions as provided to the general public.
Sec. 500.71 Utilization of only registered farm labor contractors.
The Act prohibits any person from utilizing the services of a farm
labor contractor to supply migrant or seasonal agricultural workers
without first taking reasonable steps to determine that the farm labor
contractor possesses a valid Certificate of Registration, issued
pursuant to the Act, which authorizes the activity for which the
contractor is to be utilized. This prohibition also applies to a farm
labor contractor who wishes to utilize the services of another farm
labor contractor (see Sec. 500.41). In making the determination about a
contractor's registration status, a person may rely upon the
contractor's possession of a Certificate of Registration which on its
face is valid and which authorizes the activity for which the contractor
is utilized. A person has the alternative to confirm the contractor's
registration through the central registry maintained by the United
States Department of Labor.
Sec. 500.72 Agreements with workers.
(a) The Act prohibits farm labor contractors, agricultural employers
and agricultural associations from violating, without justification, the
terms of any working arrangements they have made with migrant or
seasonal agricultural workers. Normally, ``without justification'' would
not include situations in which failure to comply with the terms of any
working arrangements was directly attributable to acts of God, due to
conditions beyond the control of the person or to conditions which he
could not reasonably foresee.
(b) Written agreements do not relieve any person of any
responsibility that the person would otherwise have under the Act or
these regulations.
Sec. 500.73 Required purchase of goods or services solely from any
person prohibited.
The Act prohibits a farm labor contractor, agricultural employer or
agricultural association from requiring a migrant or seasonal
agricultural worker to purchase goods or services solely from such farm
labor contractor, agricultural employer, or agricultural association, or
any other person acting as an agent for any person subject to this
prohibition.
Recruiting, Hiring and Providing Information to Migrant Agricultural
Workers
Sec. 500.75 Disclosure of information.
(a) Where disclosure is required, Department of Labor optional forms
may be used to satisfy the requirements of disclosure under the Act.
(b) Each farm labor contractor, agricultural employer, and
agricultural association which recruits any migrant agricultural worker
shall ascertain to the best of his ability and disclose, in writing to
the extent that he has obtained such information, to such worker at the
time of recruitment, the following information:
(1) The place of employment (with as much specificity as practical,
such as the name and address of the employer or the association);
(2) The wage rates (including piece rates) to be paid;
(3) The crops and kinds of activities on which the worker may be
employed;
(4) The period of employment;
(5) The transportation, housing, and any other employee benefits to
be provided, if any, and any costs to be charged for each of them;
(6) Whether state workers' compensation or state unemployment
insurance is provided:
(i) If workers' compensation is provided, the required disclosure
must include the name of the workers' compensation insurance carrier,
the
[[Page 29]]
name(s) of the policyholder(s), the name and telephone number of each
person who must be notified of an injury or death, and the time period
within which such notice must be given.
(ii) The information requirement in paragraph (b)(6)(i) of this
section may be satisfied by giving the worker a photocopy of any
workers' compensation notice required by State law;.
(7) The existence of any strike or other concerted work stoppage,
slowdown, or interruption of operations by employees at the place of
employment; and
(8) The existence of any arrangements with any owner or agent of any
establishment in the area of employment under which the farm labor
contractor, the agricultural employer, or the agricultural association
is to receive a commission or any other benefit resulting from any sales
by such establishment to the workers.
(c) Each farm labor contractor, agricultural employer and
agricultural association which employs any migrant agricultural worker
shall post (and maintain) in a conspicuous place at the place of
employment a poster provided by the Secretary of Labor, which sets out
the rights and protections for workers required under the Act.
(d) The employer (other than a farm labor contractor) of any migrant
agricultural worker, shall provide at the place of employment on request
of the worker, a written statement of the conditions of employment. A
farm labor contractor shall provide such information in accordance with
Sec. 500.60(b) of these regulations.
(e) In a joint employment situation, each employer is equally
responsible for displaying and maintaining the poster and for responding
to worker requests for written statements of the conditions of
employment which are made during the course of employment. This joint
responsibility, however, does not require needless duplication, such as
would occur if each employer posted the same poster or provided the same
written statement with respect to the same employment conditions.
Failure to provide the information required by a joint employment
relationship, however, will result in all joint employers being
responsible for that failure.
(f) Each farm labor contractor, agricultural employer and
agricultural association which provides housing for any migrant
agricultural worker shall post in a conspicuous place (at the site of
the housing) or present in the form of a written statement to the worker
the following information on the terms and conditions of occupancy of
such housing, if any:
(1) The name and address of the farm labor contractor, agricultural
employer
or agricultural association providing the housing;
(2) The name and address of the individual in charge of the housing;
(3) The mailing address and phone number where persons living in the
housing facility may be reached;
(4) Who may live at the housing facility;
(5) The charges to be made for housing;
(6) The meals to be provided and the charges to be made for them;
(7) The charges for utilities; and
(8) Any other charges or conditions of occupancy.
(g) If the terms and conditions of occupancy are posted, the poster
shall be displayed and maintained during the entire period of occupancy.
If the terms and conditions of occupancy are disclosed to the worker
through a statement (rather than through a posting), such statement
shall be provided to the worker prior to occupancy. Department of Labor
optional forms may be used to satisfy this requirement.
[48 FR 36741, Aug. 12, 1983, as amended at 61 FR 24866, May 16, 1996]
Hiring and Providing Information to Seasonal Agricultural Workers
Sec. 500.76 Disclosure of information.
(a) Where disclosure is required, Department of Labor optional forms
may be used to satisfy the requirements of disclosure under the Act.
(b) Each farm labor contractor, agricultural employer and
agricultural association, which recruits any seasonal agricultural
worker for employment on a farm or ranch to perform field work
[[Page 30]]
related to planting, cultivating or harvesting operations, shall
ascertain and, upon request, disclose in writing the following
information to such worker when an offer of employment is made:
(1) The place of employment (with as much specificity as practical,
such as the name and address of the employer or the association);
(2) The wage rates (including piece rates) to be paid;
(3) The crops and kinds of activities on which the worker may be
employed;
(4) The period of employment;
(5) The transportation and any other employee benefits to be
provided, if any, and any costs to be charged for each of them;
(6) Whether state workers' compensation or state unemployment
insurance is provided:
(i) If workers' compensation is provided, the required disclosure
must include the name of the workers' compensation insurance carrier,
the name(s) of the policyholder(s), the name and telephone number of
each person who must be notified of an injury or death, and the time
period within which such notice must be given.
(ii) The information requirement in paragraph (b)(6)(i) of this
section may satisfied giving the worker a photocopy of any workers'
compensation notice required by State law;
(7) The existence of any strike or other concerted work stoppage,
slowdown, or interruption of operations by employees at the place of
employment; and
(8) The existence of any arrangements with any owner or agent of any
establishment in the area of employment under which the farm labor
contractor, the agricultural employer, or the agricultural association
is to receive a commission or any other benefit resulting from any sales
by such establishment to the workers.
(c) Each farm labor contractor, agricultural employer and
agricultural association which recruits any seasonal agricultural worker
for employment through the use of day-haul operation in canning,
packing, ginning, seed conditioning or related research, or processing
operations, shall ascertain and disclose in writing to the worker at the
time of recruitment the information on employment conditions set out in
paragraph (b) of this section.
(d)(1) Each farm labor contractor, agricultural employer and
agricultural association which employs any seasonal agricultural worker
shall post (and maintain) at the place of employment in a conspicuous
place readily accessible to the worker a poster provided by the
Secretary of Labor which sets out the rights and protections for such
worker required under the Act.
(2) Such employer shall provide, on request of the worker, a written
statement of the information described in paragraph (b) of this section.
(e) In a joint employment situation, each employer is equally
responsible for displaying and maintaining the poster and for responding
to worker requests for written statements of the conditions of
employment which are made during the course of employment. This joint
responsibility, however, does not require needless duplication, such as
would occur if each employer posted the same poster or provided the same
written statement with respect to the same employment conditions.
[48 FR 36741, Aug. 12, 1983, as amended at 61 FR 24866, May 16, 1996]
Employment Information Furnished
Sec. 500.77 Accuracy of information furnished.
No farm labor contractor, agricultural employer or agricultural
association shall knowingly provide false or misleading information on
the terms, conditions or existence of agricultural employment and
housing required to be disclosed by the Act and these regulations to any
migrant or seasonal agricultural worker.
Sec. 500.78 Information in foreign language.
Each farm labor contractor, agricultural employer and agricultural
association shall make all required written disclosures to the worker,
including the written disclosures of the terms and conditions of
occupancy of housing to be provided to any migrant worker, in English
or, as necessary and reasonable, in Spanish or another language
[[Page 31]]
common to migrant or seasonal agricultural workers who are not fluent or
literate in English. The Department of Labor shall make forms available
in English, Spanish, Haitian-Creole and other languages, as necessary,
which may be used in providing workers with such information.
Wages and Payroll Standards
Sec. 500.80 Payroll records required.
(a) Each farm labor contractor, agricultural employer and
agricultural association which employs any migrant or seasonal
agricultural worker shall make and keep the following records with
respect to each worker including the name, permanent address, and Social
Security number:
(1) The basis on which wages, are paid;
(2) The number of piecework units earned, if paid on a piecework
basis;
(3) The number of hours worked;
(4) The total pay period earnings;
(5) The specific sums withheld and the purpose of each sum withheld;
and
(6) The net pay.
(b) Each farm labor contractor, agricultural employer and
agricultural association which employs any migrant or seasonal
agricultural worker shall preserve all payroll records with respect to
each such worker for a period of three years.
(c) When a farm labor contractor furnishes any migrant or seasonal
agricultural worker, and the farm labor contractor is the employer, the
farm labor contractor must furnish the agricultural employer,
agricultural association or other farm labor contractor to whom the
workers are furnished, a copy of all payroll records required under
paragraph (a) of this section which the farm labor contractor has made
regarding such worker for that place of employment. The person receiving
such records shall maintain them for a period of three years.
(d) In addition to making records of this payroll information, the
farm labor contractor, agricultural employer and agricultural
association shall provide each migrant or seasonal agricultural worker
employed with an itemized written statement of this information at the
time of payment for each pay period which must be no less often than
every two weeks (or semi-monthly). Such statement shall also include the
employer's name, address, and employer identification number assigned by
the Internal Revenue Service. This responsibility does not require
needless duplication such as would occur if each provided the worker
with a written itemized statement for the same work.
Sec. 500.81 Payment of wages when due.
Each farm labor contractor, agricultural employer and agricultural
association which employs any migrant or seasonal agricultural worker
must pay the wages owed such worker when due. In meeting this
responsibility, the farm labor contractor, agricultural employer and
agricultural association shall pay the worker no less often than every
two weeks (or semi-monthly).
Subpart D_Motor Vehicle Safety and Insurance for Transportation of
Migrant and Seasonal Agricultural Workers, Housing Safety and Health for
Migrant Workers
Motor Vehicle Safety
Sec. 500.100 Vehicle safety obligations.
(a) General obligations. Each farm labor contractor, agricultural
employer and agricultural association which uses, or causes to be used,
any vehicle to transport a migrant or seasonal agricultural worker shall
ensure that such vehicle conforms to vehicle safety standards prescribed
by the Secretary of Labor under the Act and with other applicable
Federal and State safety standards. Each farm labor contractor,
agricultural employer and agricultural association shall also ensure
that each driver of any such vehicle has a currently valid motor vehicle
operator's permit or license, as provided by applicable State law, to
operate the vehicle.
(b) Proof of compliance with vehicle safety standards. Prima facie
evidence that safety standards have been met will be shown by the
presence of a current State vehicle inspection sticker. Such sticker
will not, however, relieve
[[Page 32]]
the farm labor contractor, agricultural employer or agricultural
association from responsibility for maintaining the vehicle in
accordance with Sec. 500.104 or Sec. 500.105, as applicable.
(c) Uses or causes to be used. The term ``uses or causes to be
used'' as set forth in paragraph (a) of this section does not include
carpooling arrangements made by the workers themselves, using one of the
workers' own vehicles. However, carpooling does not include any
transportation arrangement in which a farm labor contractor participates
or which is specifically directed or requested by an agricultural
employer or an agricultural association.
Sec. 500.101 Promulgation and adoption of vehicle standards.
(a) General. All transportation of migrant and seasonal agricultural
workers, whether on the farm or on the road, shall be subject to the
vehicle safety standards of the Act, except for activities under the
circumstances set out in Sec. 500.103.
(b) Compliance required. Any violation of the standards promulgated
by the Secretary in Sec. 500.104 or adopted by the Secretary in Sec.
500.105 shall be a violation of the Act and these regulations.
(c) Development of Department of Labor Standards. In developing the
regulations in Sec. 500.104, the Secretary has considered among other
factors: (1) The type of vehicle used, (2) the passenger capacity of the
vehicle, (3) the distance which such workers will be carried in the
vehicle, (4) the type of roads and highways on which such workers will
be carried in the vehicle, and (5) the extent to which a proposed
standard would cause an undue burden on agricultural employers,
agricultural associations, or farm labor contractors.
(d) Adoption of Department of Transportation (DOT) Standards. In
accordance with section 401(b)(2)(C) of the Act, the Secretary has
adopted in Sec. 500.105 of these regulations, the DOT standards,
without regard to the mileage and boundary limitations established in 49
U.S.C. 3102(c).
Sec. 500.102 Applicability of vehicle safety standards.
(a) Any passenger automobile or station wagon used or caused to be
used by any farm labor contractor, agricultural employer or agricultural
association to transport any migrant or seasonal agricultural worker
shall meet the vehicle safety standards prescribed in Sec. 500.104.
(b) Any vehicle, other than a passenger automobile or station wagon,
used or caused to be used by any farm labor contractor, agricultural
employer or agricultural association to transport any migrant or
seasonal agricultural worker pursuant to a day-haul operation shall be
subject to the safety standards prescribed under Sec. 500.105.
(c) Any vehicle, other than a passenger automobile or station wagon,
which has been or is being used or caused to be used for any trip of a
distance greater than 75 miles by a farm labor contractor, agricultural
employer or agricultural association to transport any migrant or
seasonal agricultural worker, shall be subject to the safety standards
prescribed under Sec. 500.105. One trip may have numerous intermediate
stops.
(d) Any vehicle, other than a passenger automobile or station wagon,
used or caused to be used by any farm labor contractor, agricultural
employer or agricultural association to transport any migrant or
seasonal agricultural worker in any manner not addressed by paragraphs
(a), (b), or (c) of this section shall meet the vehicle safety standards
prescribed in Sec. 500.104.
(e) The use or intended use of a vehicle, other than a passenger
automobile or station wagon, for transportation of the type identified
in Sec. 500.102(b) or Sec. 500.102(c) will make the vehicle subject to
the standards prescribed under Sec. 500.105, so long as the vehicle is
used for transportation subject to the Act and these regulations.
(f) Any pickup truck used only for transportation subject to Sec.
500.104 when transporting passengers only within the cab shall be
treated as a station wagon.
(g) Pursuant to section 401(b)(2)(C) of the Act, standards
prescribed by the Secretary shall be in addition to, and shall not
supersede nor modify, any standards prescribed under part II of the
Interstate Commerce Act and any successor provision of subtitle IV of
[[Page 33]]
title 49, U.S. Code or the regulations issued thereunder which is
independently applicable to transportation to which this section
applies. A violation of any such standard shall also constitute a
violation of the Act and these regulations.
[48 FR 36741, Aug. 12, 1983; 48 FR 38380, Aug. 23, 1983]
Sec. 500.103 Activities not subject to vehicle safety standards.
(a) Agricultural machinery and equipment excluded. Vehicle safety
standards or insurance requirements issued under the Act and these
regulations do not apply to the transportation of any seasonal or
migrant agricultural worker on a tractor, combine, harvester, picker,
other similar machinery and equipment while such worker is actually
engaged in the planting, cultivating, or harvesting of any agricultural
commodity or the care of livestock or poultry. This exclusion applies
only to workers carrying out these activities on such machinery and
equipment or being engaged in transportation incidental thereto. The
exclusion does not include the use of such machinery for the
transportation of any worker under any other circumstances.
(b) Exclusion for immediate family transporting family members. The
standards of this subpart do not apply to an individual migrant or
seasonal agricultural worker when the only other occupants of that
individual's vehicle consist of his immediate family members as defined
in Sec. 500.20(o).
(c) Carpooling. Vehicle safety standards or insurance requirements
of the Act and these regulations do not apply to carpooling arrangements
made by the workers themselves, using one of the workers' own vehicles
and not specifically directed or requested by an agricultural employer
or agricultural association. Carpooling, however, does not include any
transportation arrangement in which a farm labor contractor
participates.
(See also Sec. 500.120)
Sec. 500.104 Department of Labor standards for passenger automobiles
and station wagons and transportation of seventy-five miles or less.
Any farm labor contractor, agricultural employer or agricultural
association providing transportation in passenger automobiles and
station wagons and other vehicles used only for transportation as
provided in Sec. 500.102(a) and (d) shall comply with the following
vehicle safety standards:
(a) External lights. Head lights, tail lights, stop lights, back-up
lights, turn signals and hazard warning lights shall be operable.
(b) Brakes. Every vehicle shall be equipped with operable brakes for
stopping and holding on an incline. Brake systems shall be free of
leaks.
(c) Tires. Tires shall have at least
2/32 inch tread depth, and have no cracks/defects in the sidewall.
(d) Steering. The steering wheel and associated mechanism shall be
maintained so as to safely and accurately turn the vehicles.
(e) Horn. Vehicles shall have an operable air or electric horn.
(f) Mirrors. Mirrors shall provide the driver full vision of the
sides and to the rear of the vehicle.
(g) Windshields/windshield wipers. Windshields and windows may not
have cracks or opaque obstructions which obscure vision. Vehicles shall
be equipped with windshield wipers that are operational to allow the
operator full frontal vision in all weather conditions.
(h) Fuel system. Fuel lines and the fuel tank shall be free of
leaks. The tank shall be fitted with a cap to securely cover the filling
opening.
(i) Exhaust system. The exhaust system shall discharge carbon
monoxide away from the passenger compartment and be free of leaks
beneath the passenger compartment.
(j) Ventilation. Windows will be operational to allow fresh air to
the occupants of the vehicle.
(k) Safe loading. Vehicles will not be driven when loaded beyond the
manufacturer's gross vehicle weight rating.
(l) Seats. A seat securely fastened to the vehicle will be provided
for each occupant or rider in, or on, any vehicle, except that
transportation which is
[[Page 34]]
primarily on private farm roads will be excused from this requirement
provided the total distance traveled does not exceed ten (10) miles, and
so long as the trip begins and ends on a farm owned or operated by the
same employer.
(m) Handles and latches. Door handles and latches shall be provided
and maintained to allow exiting capability for vehicle occupants.
(n) Passenger compartment. Floor and sides of any part of the
vehicle to be occupied by passengers must be free of openings, rusted
areas or other defects which are likely to result in injury to
passengers.
Sec. 500.105 DOT standards adopted by the Secretary.
(a) Any farm labor contractor, agricultural employer or agricultural
association providing transportation in vehicles other than passenger
automobiles and station wagons used for transportation as provided in
Sec. 500.102 (b), (c), and (e) shall comply with the motor carrier
safety standards listed in paragraph (b) of this section.
(b) The Secretary for the purposes of this section has adopted from
49 CFR part 398 the following pertinent standards. (In adopting these
standards, editorial changes necessitated by the Act and these
regulations have been made to conform the language to these
regulations):
(1) Qualification of drivers or operators (Source: 49 CFR 398.3)--
(i) Compliance required. Every person subject to this Act who drives a
motor vehicle or is responsible for the hiring, supervision, training,
assignment or dispatching of drivers shall comply and be conversant with
the requirements of this section.
(ii) Minimum physical requirements. No such person shall drive, nor
shall any such person require or permit any person to drive, any motor
vehicle unless such person possesses the following minimum
qualifications:
(A) No loss of foot, leg, hand or arm,
(B) No mental, nervous, organic, or functional disease, likely to
interfere with safe driving.
(C) No loss of fingers, impairment of use of foot, leg, fingers,
hand or arm, or other structural defect or limitation, likely to
interfere with safe driving.
(D) Eyesight. Visual acuity of at least 20/40 (Snellen) in each eye
either without glasses or by correction with glasses; form field of
vision in the horizontal meridian shall not be less than a total of 140
degrees; ability to distinguish colors red, green and yellow; drivers
requiring correction by glasses shall wear properly prescribed glasses
at all times when driving.
(E) Hearing. Hearing shall not be less than 10/20 in the better ear,
for conversational tones, without a hearing aid.
(F) Liquor, narcotics and drugs. Shall not be addicted to the use of
narcotics or habit forming drugs, or the excessive use of alcoholic
beverages or liquors.
(G) Initial and periodic physical examination of drivers. No such
person shall drive nor shall any such person require or permit any
person to drive any motor vehicle unless within the immediately
preceding 36-month period such person shall have been physically
examined and shall have been certified in accordance with the provisions
of paragraph (b)(1)(ii)(H) of this section by a licensed doctor of
medicine or osteopathy as meeting the requirements of this subsection.
(H) Certificate of physical examination. Every person shall have in
his files at his principal place of business for every driver employed
or used by him a legible certificate of a licensed doctor of medicine or
osteopathy based on a physical examination as required by paragraph
(b)(1)(ii)(G) of this section or a legible photographically reproduced
copy thereof, and every driver shall have in his possession while
driving, such a certificate or a photographically reproduced copy
thereof covering himself.
(I) Doctor's certificate. The doctor's certificate shall certify as
follows:
Doctor's Certificate
(Driver of Migrant Workers)
This is to certify that I have this day examined ------------ in
accordance with Sec. 398.3(b) of the Federal Motor Carrier Safety
Regulations of the Federal Highway Administration and that I find him
Qualified under said rules [squ]
Qualified only when wearing glasses [squ]
[[Page 35]]
I have kept on file in my office a completed examination.
(Date)__________________________________________________________________
(Place)_________________________________________________________________
________________________________________________________________________
(Signature of examining doctor)
________________________________________________________________________
(Address of doctor)
________________________________________________________________________
(Signature of driver)
________________________________________________________________________
(Address of driver)
(iii) Minimum age and experience requirements. No person shall
drive, nor shall any person require or permit any person to drive, any
motor vehicle unless such person possesses the following minimum
qualifications:
(A) Age. Minimum age shall be 21 years.
(B) Driving skill. Experience in driving some type of motor vehicle
(including private automobiles) for not less than one year, including
experience throughout the four seasons.
(C) Knowledge of regulations. Familiarity with the rules and
regulations prescribed in this part pertaining to the driving of motor
vehicles.
(D) Knowledge of English. Every driver shall be able to read and
speak the English language sufficiently to understand highway traffic
signs and signals and directions given in English and to respond to
official inquiries.
(E) Driver's permit. Possession of a valid permit qualifying the
driver to operate the type of vehicle driven by him in the jurisdiction
by which the permit is issued.
(2) Driving of motor vehicles (Source: 49 CFR 398.4)--(i) Compliance
required. Every person shall comply with the requirements of this
section, shall instruct its officers, agents, representatives and
drivers with respect thereto, and shall take such measures as are
necessary to insure compliance therewith by such persons. All officers,
agents, representatives, drivers, and employees of persons subject to
this Act directly concerned with the management, maintenance, operation,
or driving of motor vehicles, shall comply with and be conversant with
the requirements of this section.
(ii) Driving rules to be obeyed. Every motor vehicle shall be driven
in accordance with the laws, ordinances, and regulations of the
jurisdiction in which it is being operated, unless such laws, ordinances
and regulations are at variance with specific regulations of the Federal
Highway Administration, which impose a greater affirmative obligation or
restraint.
(iii) [Reserved]
(iv) Alcoholic beverages. No driver shall drive or be required or
permitted to drive a motor vehicle, be in active control of any such
vehicle, or go on duty or remain on duty, when under the influence of
any alcoholic beverage or liquor, regardless of its alcoholic content,
nor shall any driver drink any such beverage or liquor while on duty.
(v) Schedules to conform with speed limits. No person shall permit
nor require the operation of any motor vehicle between points in such
period of time as would necessitate the vehicle being operated at speeds
greater than those prescribed by the jurisdictions in or through which
the vehicle is being operated.
(vi) Equipment and emergency devices. No motor vehicle shall be
driven unless the driver thereof shall have satisfied himself that the
following parts, accessories, and emergency devices are in good working
order; nor shall any driver fail to use or make use of such parts,
accessories, and devices when and as needed:
Service brakes, including trailer brake connections.
Parking (hand) brake.
Steering mechanism.
Lighting devices and reflectors.
Tires.
Horn.
Windshield wiper or wipers.
Rear-vision mirror or mirrors.
Coupling devices.
Fire extinguisher, at least one properly mounted.
Road warning devices, at least one red burning fusee and at least three
flares (oil burning pot torches), red electric lanterns, or red
emergency reflectors.
(vii) Safe loading--(A) Distribution and securing of load. No motor
vehicle shall be driven nor shall any motor carrier permit or require
any motor vehicle to be driven if it is so loaded, or if the load
thereon is so improperly distributed or so inadequately secured, as to
prevent its safe operation.
[[Page 36]]
(B) Doors, tarpaulins, tailgates and other equipment. No motor
vehicle shall be driven unless the tailgate, tailboard, tarpaulins,
doors, all equipment and rigging used in the operation of said vehicle,
and all means of fastening the load, are securely in place.
(C) Interference with driver. No motor vehicle shall be driven when
any object obscures his view ahead, or to the right or left sides, or to
the rear, or interferes with the free movement of his arms or legs, or
prevents his free and ready access to the accessories required for
emergencies, or prevents the free and ready exit of any person from the
cab or driver's compartment.
(D) Property on motor vehicles. No vehicle transporting persons and
property shall be driven unless such property is stowed in a manner
which will assure: (1) Unrestricted freedom of motion to the driver for
proper operation of the vehicle; (2) unobstructed passage to all exits
by any person; and (3) adequate protection to passengers and others from
injury as a result of the displacement or falling of such articles.
(E) Maximum passengers on motor vehicles. No motor vehicle shall be
driven if the total number of passengers exceeds the seating capacity
which will be permitted on seats prescribed in Sec. 500.105(b)(3)(vi).
All passengers carried on such vehicle shall remain seated while the
motor vehicle is in motion.
(viii) Rest and meal stops. Every person shall provide for
reasonable rest stops at least once between meal stops. Meal stops shall
be made at intervals not to exceed six hours and shall be for a period
of not less than 30 minutes duration.
(ix) Kinds of motor vehicles in which workers may be transported.
Workers may be transported in or on only the following types of motor
vehicles: A bus, a truck with no trailer attached, or a semitrailer
attached to a truck-tractor provided that no other trailer is attached
to the semitrailer. Closed vans without windows or means to assure
ventilation shall not be used.
(x) Limitation on distance of travel in trucks. Any truck when used
for the transportation of migrant or seasonal agricultural workers, if
such workers are being transported in excess of 600 miles, shall be
stopped for a period of not less than eight consecutive hours either
before or upon completion of 600 miles travel, and either before or upon
completion of any subsequent 600 miles travel to provide rest for
drivers and passengers.
(xi) Lighting devices and reflectors. No motor vehicle shall be
driven when any of the required lamps or reflectors are obscured by the
tailboard, by any and all lighting devices required pursuant to 49
U.S.C. 3102(c) shall be lighted during darkness or at any other time
when there is not sufficient light to render vehicles and persons
visible upon the highway at a distance of 500 feet.
(xii) Ignition of fuel; prevention. No driver or other person shall:
(A) Fuel a motor vehicle with the engine running, except when it is
necessary to run the engine to fuel the vehicle; (B) smoke or expose any
open flame in the vicinity of a vehicle being fueled; (C) fuel a motor
vehicle unless the nozzle of the fuel hose is continuously in contact
with the intake pipe of the fuel tank; (D) permit any other person to
engage in such activities as would be likely to result in fire or
explosion.
(xiii) Reserve fuel. No supply of fuel for the propulsion of any
motor vehicle or for the operation of any accessory thereof shall be
carried on the motor vehicle except in a properly mounted fuel tank or
tanks.
(xiv) Driving by unauthorized person. Except in case of emergency,
no driver shall permit a motor vehicle to which he is assigned to be
driven by any person not authorized to drive such vehicle.
(xv) Protection of passengers from weather. No motor vehicle shall
be driven while transporting passengers unless the passengers therein
are protected from inclement weather conditions such as rain, snow, or
sleet, by use of the top or protective devices required by Sec.
500.105(b)(3)(vi)(E).
(xvi) Unattended vehicles; precautions. No motor vehicle shall be
left unattended by the driver until the parking brake has been securely
set, the wheels chocked, and all reasonable precautions have been taken
to prevent the movement of such vehicle.
(xvii) Railroad grade crossings; stopping required; sign on rear of
vehicle.
[[Page 37]]
Every motor vehicle shall, upon approaching any railroad grade crossing,
make a full stop not more than 50 feet, nor less than 15 feet from the
nearest rail of such railroad grade crossing, and shall not proceed
until due caution has been taken to ascertain that the course is clear;
except that a full stop need not be made at:
(A) A street car crossing within a business or residence district of
a municipality;
(B) A railroad grade crossing where a police officer or a traffic-
control signal (not a railroad flashing signal) directs traffic to
proceed:
(C) An abandoned or exempted grade crossing which is clearly marked
as such by or with the consent of the proper state authority, when such
marking can be read from the driver's position.
All such motor vehicles shall display a sign on the rear reading, ``This
Vehicle Stops at Railroad Crossings.''
(3) Parts and accessories necessary (Source: 49 CFR 398.5)--(i)
Compliance. Every person and its officers, agents, drivers,
representatives and employees directly concerned with the installation
and maintenance of equipment and accessories shall comply and be
conversant with the requirements and specifications of this part, and no
person shall operate any motor vehicle, or cause or permit it to be
operated, unless it is equipped in accordance with said requirements and
specifications.
(ii) Lighting devices. Every motor vehicle shall be equipped with
the lighting devices and reflectors required pursuant to 49 U.S.C. 3102
(c).
(iii) Brakes. Every motor vehicle shall be equipped with brakes as
required pursuant to 49 U.S.C. 3102 (c).
(iv) Coupling devices; fifth wheel mounting and locking. The lower
half of every fifth wheel mounted on any truck-tractor or dolly shall be
securely affixed to the frame thereof by U-bolts of adequate size,
securely tightened, or by other means providing at least equivalent
security. Such U-bolts shall not be of welded construction. The
installation shall be such as not to cause cracking, warping, or
deformation of the frame. Adequate means shall be provided positively to
prevent the shifting of the lower half of a fifth wheel on the frame to
which it is attached. The upper half of every fifth wheel shall be
fastened to the motor vehicle with at least the security required for
the securing of the lower half to a truck-tractor or dolly. Locking
means shall be provided in every fifth wheel mechanism including
adapters when used, so that the upper and lower halves may not be
separated without the operation of a positive manual release. A release
mechanism operated by the driver from the cab shall be deemed to meet
this requirement. On fifth wheels designed and constructed so as to be
readily separable, the fifth wheel locking devices shall apply
automatically on coupling for any motor vehicle the date of manufacture
of which is subsequent to December 31, 1952.
(v) Tires. Every motor vehicle shall be equipped with tires of
adequate capacity to support its gross weight. No motor vehicle shall be
operated on tires which have been worn so smooth as to expose any tread
fabric or which have any other defect likely to cause failure. No
vehicle shall be operated while transporting passengers while using any
tire which does not have tread configurations on that part of the tire
which is in contact with the road surface. No vehicle transporting
passengers shall be operated with regrooved, re-capped, or re-treaded
tires on front wheels.
(vi) Passenger compartment. Every motor vehicle transporting
passengers, other than a bus, shall have a passenger compartment meeting
the following requirements:
(A) Floors. A substantially smooth floor, without protruding
obstructions more than two inches high, except as are necessary for
securing seats or other devices to the floor, and without cracks or
holes.
(B) Sides. Side walls and ends above the floor at least 60 inches
high, by attachment of sideboards to the permanent body construction if
necessary. Stake body construction shall be construed to comply with
this requirement only if all six-inch or larger spaces between stakes
are suitably closed to prevent passengers from falling off the vehicle.
[[Page 38]]
(C) Nails, screws, splinters. The floor and the interior of the
sides and ends of the passenger-carrying space shall be free of inwardly
protruding nails, screws, splinters, or other projecting objects likely
to be injurious to passengers or their apparel.
(D) Seats. A seat shall be provided for each worker transported. The
seats shall be: Securely attached to the vehicle during the course of
transportation; not less than 16 inches nor more than 19 inches above
the floor; at least 13 inches deep; equipped with backrests extending to
a height of at least 36 inches above the floor, with at least 24 inches
of space between the backrests or between the edges of the opposite
seats when face to face; designed to provide at least 18 inches of seat
for each passenger; without cracks more than two inches wide, and the
exposed surfaces, if made of wood, planed or sanded smooth and free of
splinters.
(E) Protection from weather. Whenever necessary to protect the
passengers from inclement weather conditions, be equipped with a top at
least 80 inches high above the floor and facilities for closing the
sides and ends of the passenger-carrying compartment. Tarpaulins or
other such removable devices for protection from the weather shall be
secured in place.
(F) Exit. Adequate means of ingress and egress to and from the
passenger space shall be provided on the rear or at the right side. Such
means of ingress and egress shall be at least 18 inches wide. The top
and the clear opening shall be at least 60 inches high, or as high as
the side wall of the passenger space if less than 60 inches. The bottom
shall be at the floor of the passenger space.
(G) Gates and doors. Gates or doors shall be provided to close the
means of ingress and egress and each such gate or door shall be equipped
with at least one latch or other fastening device of such construction
as to keep the gate or door securely closed during the course of
transportation; and readily operative without the use of tools.
(H) Ladders or steps. Ladders or steps for the purpose of ingress or
egress shall be used when necessary. The maximum vertical spacing of
footholds shall not exceed 12 inches, except that the lowest step may be
not more than 18 inches above the ground when the vehicle is empty.
(I) Hand holds. Hand holds or devices for similar purpose shall be
provided to permit ingress and egress without hazard to passengers.
(J) Emergency exit. Vehicles with permanently affixed roofs shall be
equipped with at least one emergency exit having a gate or door, latch
and hand hold as prescribed in paragraphs (b)(3)(vi) (G) and (I) of this
section and located on a side or rear not equipped with the exit
prescribed in paragraph (b)(3)(vi)(F) of this section.
(K) Communication with driver. Means shall be provided to enable the
passengers to communicate with the driver. Such means may include
telephone, speaker tubes, buzzers, pull cords, or other mechanical or
electrical means.
(vii) Protection from cold. Every motor vehicle shall be provided
with a safe means of protecting passengers from cold or undue exposure,
but in no event shall heaters of the following types be used:
(A) Exhaust heaters. Any type of exhaust heater in which the engine
exhaust gases are conducted into or through any space occupied by
persons or any heater which conducts engine compartment air into any
such space.
(B) Unenclosed flame heaters. Any type of heater employing a flame
which is not fully enclosed.
(C) Heaters permitting fuel leakage. Any type of heater from the
burner of which there could be spillage or leakage of fuel upon the
tilting or overturning of the vehicle in which it is mounted.
(D) Heaters permitting air contamination. Any heater taking air,
heated or to be heated, from the engine compartment or from direct
contact with any portion of the exhaust system; or any heater taking air
in ducts from the outside atmosphere to be conveyed through the engine
compartment, unless said ducts are so constructed and installed as to
prevent contamination of the air so conveyed by exhaust or engine
compartment gases.
(E) Any heater not securely fastened to the vehicle.
(4) Hours of service of drivers; maximum driving time (Source: 49
CFR 398.6). No
[[Page 39]]
person shall drive nor shall any person permit or require a driver
employed or used by it to drive or operate for more than 10 hours in the
aggregate (excluding rest stops and stops for meals) in any period of 24
consecutive hours, unless such driver be afforded eight consecutive
hours rest immediately following the 10 hours aggregate driving. The
term ``24 consecutive hours'' as used in this part means any such period
starting at the time the driver reports for duty.
(5) Inspection and maintenance of motor vehicles (Source: 49 CFR
398.7). Every person shall systematically inspect and maintain or cause
to be systematically maintained, all motor vehicles and their
accessories subject to its control, to insure that such motor vehicles
and accessories are in safe and proper operating condition.
[48 FR 36741, Aug. 12, 1983; 48 FR 38380, Aug. 23, 1983]
Insurance
Sec. 500.120 Insurance policy or liability bond is required for each
vehicle used to transport any migrant or seasonal agricultural worker.
A farm labor contractor, agricultural employer or agricultural
association shall not transport any migrant or seasonal agricultural
worker or his property in any vehicle such contractor, employer or
association owns, operates, controls, or causes to be operated unless he
has an insurance policy or liability bond in effect which insures
against liability for damage to persons or property arising from the
ownership, operation, or causing to be operated of such vehicle.
Generally, the owner or lessor of the vehicle will be responsible for
providing the required insurance. The insurance requirements do not
apply to vehicles involved in carpooling arrangements made by the
workers themselves, using one of the workers' own vehicles and not
specifically directed or requested by an agricultural employer or
agricultural association. However, carpooling does not include any
transportation arrangement in which a farm labor contractor
participates. Activities exempt from transportation safety standards are
also exempt from insurance requirements. (See also Sec. 500.103.)
Sec. 500.121 Coverage and level of insurance required.
(a) Except where a liability bond pursuant to Sec. 500.124 of this
part has been approved by the Secretary, a farm labor contractor,
agricultural employer or agricultural association shall, in order to
meet the insurance requirements in Sec. 500.120, obtain a policy of
vehicle liability insurance.
(b) The amount of vehicle liability insurance shall not be less than
$100,000 for each seat in the vehicle, but in no event is the total
insurance required to be more than $5,000,000 for any one vehicle. The
number of seats in the vehicle shall be determined by reference to Sec.
500.105(b)(3)(vi). See Sec. 500.122 regarding insurance requirements
where State workers' compensation coverage is provided.
(c) The insurance to be obtained under paragraph (a) of this section
shall be issued by an insurance carrier licensed or otherwise authorized
to do business in the State in which the insurance is obtained.
(d) The vehicle liability insurance to be obtained under paragraph
(a) of this section shall be endorsed to insure against liability for
personal injury to employees whose transportation is not covered by
workers' compensation insurance, and to persons who are not employees;
and for property damage as specified in (b) of this section.
(e) An agricultural employer or agricultural association may
evidence the purchase of liability insurance which covers the workers
while being transported, as required under paragraph (a) by obtaining
and making available upon request to the Department of Labor a completed
liability certificate of insurance showing that insurance conforming to
the limits required by paragraph (b) and the coverage required by
paragraph (d) of this section is in effect. A farm labor contractor must
obtain such a certificate and provide a copy to the Administrator when
applying for authorization to transport migrant or seasonal agricultural
workers.
(f) With respect to an agricultural employer or agricultural
association,
[[Page 40]]
in the absence of the insurance certificate referred to under paragraph
(e) of this section, the Department of Labor will look to the actual
policy of insurance in determining compliance with the insurance
requirements.
[48 FR 36741, Aug. 12, 1983, as amended at 57 FR 3905, Jan. 31, 1992; 61
FR 24866, May 16, 1996]
Sec. 500.122 Adjustments in insurance requirements when workers'
compensation coverage is provided under State law.
(a) If a farm labor contractor, agricultural employer or
agricultural association referred to in Sec. 500.120 is the employer of
a migrant or seasonal agricultural worker for purposes of a State
workers' compensation law and such employer provides workers'
compensation coverage for such worker in the case of bodily injury or
death as provided by such State law, the following adjustments in the
insurance requirements relating to having an insurance policy or
liability bond apply:
(1) Except as provided in Sec. 500.123, no vehicle liability
insurance policy or liability bond shall be required of the employer, if
such worker is transported only under circumstances for which there is
coverage under such State law.
(2) A liability insurance policy or liability bond shall be required
of the employer for circumstances under which coverage for the
transportation of such worker is not provided under such State law.
(b) [Reserved]
(c) A farm labor contractor, agricultural employer or agricultural
association who is the employer of a migrant or seasonal agricultural
worker may evidence the issuance of workers' compensation insurance and
passenger insurance under paragraph (a) of this section by obtaining and
making available upon request to the Department of Labor:
(1) A workers' compensation coverage policy of insurance; and
(2) A certificate of liability insurance covering transportation of
all passengers who are not employees and of workers whose transportation
by the employer is not covered by workers' compensation insurance. See
Sec. 500.121.
(d) In the absence of the insurance certificate referred to under
paragraph (c)(2) of this section, the Department of Labor will look to
the actual policy of insurance or liability bond in determining
compliance with the Act and these regulations.
[48 FR 36741, Aug. 12, 1983, as amended at 56 FR 30327, July 2, 1991; 61
FR 24866, May 16, 1996]
Sec. 500.123 Property damage insurance required.
(a) When a person who is an employer of a migrant or seasonal
agricultural worker provides workers' compensation insurance which
protects such worker in the event of bodily injury or death while the
worker is being transported, such person must also obtain insurance
providing a minimum of $50,000 for loss or damage in any one accident to
the property of others (excluding cargo), or evidence of a general
liability insurance policy that provides the same protection.
(b) Such person may evidence the purchase of motor carrier insurance
or other appropriate insurance providing such property damage protection
by obtaining and making available upon request to the Department of
Labor a vehicle or other liability certificate of insurance showing that
such person has obtained the property damage insurance required under
paragraph (a) of this section.
(c) In the absence of the insurance certificate referred to in
paragraph (b) of this section, the Department of Labor will look to the
actual policy of insurance in determining compliance with paragraph (a)
of this section.
Sec. 500.124 Liability bond in lieu of insurance policy.
Financial responsibility in lieu of insurance may be evidenced by a
liability bond executed as the ``principal'' by the person who will be
transporting a migrant or seasonal agricultural worker, together with a
third party identified in the instrument as the ``surety'', to assure
payment of any liability up to $500,000 for damages to persons or
property arising out of such person's ownership of, operation of, or
causing to be operated any vehicle for the
[[Page 41]]
transportation of such worker in connection with the person's business,
activities, or operations. The ``surety'' shall be one which appears on
the list contained in Treasury Department Circular 570, or which has
been approved by the Secretary under the Employee Retirement Income
Security Act of 1974 (Pub. L. 93-406). Treasury Department Circular 570
may be obtained from the U.S. Treasury Department, Audit Staff, Bureau
of Government Financial Operations, Washington, DC 20226.
Sec. 500.125 Qualifications and eligibility of insurance carrier or
surety.
A policy of insurance or liability bond does not satisfy the
financial responsibility of requirements of the Act and these
regulations unless the insurer or surety furnishing the policy or bond
to any farm labor contractor, agricultural employer or agricultural
association is:
(a) Legally authorized to issue such policies or bonds in the State
in which the transportation occurs; or
(b) Legally authorized to issue such policies or bonds in the State
in which the farm labor contractor, agricultural employer or
agricultural association has its principal place of business or
permanent residence and is willing to designate a person upon whom
process, issued by or under the authority of any court having
jurisdiction of the subject matter, may be served in any proceeding at
law or equity brought in any State in which the transportation occurs;
or
(c) Legally authorized to issue such policies or bonds in any State
of the United States and eligible as an excess or surplus lines insurer
in any State in which business is written and is willing to designate a
person upon whom process, issued by or under the authority of any court
having jurisdiction of the subject matter, may be served in any
proceeding at law or equity brought in any State in which the
transportation occurs.
Sec. 500.126 Duration of insurance or liability bond.
Any insurance policy or liability bond which is obtained pursuant to
the Act shall provide the required coverage for the full period during
which the person shall be engaged in transporting any migrant or
seasonal agricultural worker within the meaning of the Act.
Sec. 500.127 Limitations on cancellation of insurance or liability bond
of registered farm labor contractors.
Any insurance policy or liability bond obtained by a farm labor
contractor who is required to register with the Department of Labor
shall provide that it shall not be cancelled, rescinded, or suspended,
nor become void for any reason whatsoever during such period in which
the insurance or liability bond is required by the Act to be effective,
except upon the expiration of the term for which it is written; or
unless the parties desiring to cancel shall have first given thirty (30)
days notice to the Administrator. The notice will include a statement
setting forth the reason for cancellation, rescission, suspension, or
any other termination of such policy or bond. The notice shall be in
writing and forwarded via certified or registered mail, addressed to the
Administrator of the Wage and Hour Division, U.S. Department of Labor,
Washington, DC 20210. Said thirty (30) days notice shall commence to run
from the date notice is actually received by the Administrator.
Sec. 500.128 Cancellation of insurance policy or liability bond not
relief from insurance requirements.
Cancellation, rescission, suspension, or any other termination of
any insurance policy or liability bond required by the Act does not
relieve a person who transports or causes to be transported any migrant
or seasonal agricultural worker in any vehicle under
his ownership or control of the responsibility to comply with the
insurance requirements specified in Sec. Sec. 500.121, 500.122 and
500.123.
Housing Safety and Health
Sec. 500.130 Application and scope of safety and health requirement.
(a) Each person who owns or controls a facility or real property
which is used as housing for any migrant agricultural worker must ensure
that the facility or real property complies with
[[Page 42]]
all substantive Federal and State safety and health standards applicable
to such housing. If more than one person is involved in providing the
housing for any migrant agricultural worker (for example, when an
agricultural employer owns it and a farm labor contractor or any other
person operates it), both persons are responsible for ensuring that the
facility or real property meets the applicable Federal and State housing
standards.
(b) A farm labor contractor, agricultural employer, agricultural
association or any other person is deemed an ``owner'' of a housing
facility or real property if said person has a legal or equitable
interest in such facility or real property.
(c) A farm labor contractor, agricultural employer, agricultural
association or any other person is in ``control'' of a housing facility
or real property, regardless of the location of such facility, if said
person is in charge of or has the power or authority to oversee, manage,
superintend or administer the housing facility or real property either
personally or through an authorized agent or employee, irrespective of
whether compensation is paid for engaging in any of the aforesaid
capacities.
(d) The Occupational Safety and Health Administration (OSHA) is the
agency of the U.S. Department of Labor which administers the
Occupational Safety and Health Act (29 U.S.C. 651 et seq.) which
provides for the establishment of safety and health standards generally.
(e) The Employment and Training Administration (ETA) is the agency
of the U.S. Department of Labor which administers the U.S. Employment
Service pursuant to the Wagner-Peyser Act (29 U.S.C. 49 et seq.)
including the interstate clearance order system.
Sec. 500.131 Exclusion from housing safety and health requirement.
The housing safety and health requirements do not apply to any
person who, in the ordinary course of that person's business, regularly
provides housing on a commercial basis to the general public and who
provides housing to any migrant agricultural worker of the same
character and on the same or comparable terms and conditions as provided
to the general public. Migrant labor housing shall not be brought within
this exception simply by offering lodging to the general public.
Sec. 500.132 Applicable Federal standards: ETA and OSHA housing
standards.
(a) The Secretary has determined that the applicable Federal housing
standards are the standards promulgated by the Employment and Training
Administration, at 20 CFR 654.404 et seq. and the standards promulgated
by the Occupational Safety and Health Administration, at 29 CFR
1910.142. Except as provided in Sec. 500.131, all migrant housing is
subject to either the ETA standards or the OSHA standards, as follows:
(1) A person who owns or controls a facility or real property to be
used for housing any migrant agricultural worker, the construction of
which was begun on or after April 3, 1980, and which was not under a
contract for construction as of March 4, 1980, shall comply with the
substantive Federal safety and health standards promulgated by OSHA at
29 CFR 1910.142. These OSHA standards are enforceable under MSPA,
irrespective of whether housing is, at any particular point in time,
subject to inspection under the Occupational Safety and Health Act.
(2) A person who owns or controls a facility or real property to be
used for housing any migrant agricultural worker which was completed or
under construction prior to April 3, 1980, or which was under a contract
for construction prior to March 4, 1980, may elect to comply with either
the substantive Federal safety and health standards promulgated by OSHA
at 29 CFR 1910.142 or the standards promulgated by ETA at 20 CFR 654.404
et seq. The ETA standards were established to provide housing
requirements for migrant housing used by an employer obtaining migrant
workers through the U.S. Employment Service. The owner or operator of
such housing may continue to rely on those standards, rather than OSHA
standards, even if the housing is not currently being provided pursuant
to a USES job placement program.
[[Page 43]]
Sec. 500.133 Substantive Federal and State safety and health standards
defined.
Substantive safety and health standards include, but are not limited
to, those that provide fire prevention, an adequate and sanitary supply
of water,
plumbing maintenance, structurally sound construction of buildings,
effective maintenance of those buildings, provision of adequate heat as
weather conditions require, and reasonable protections for inhabitants
from insects and rodents. Substantive housing standards do not include
technical or procedural violations of safety and health standards.
Sec. 500.134 Compliance with State standards.
Compliance with the substantive Federal housing safety and health
standards shall not excuse noncompliance with applicable substantive
State housing safety and health standards.
Sec. 500.135 Certificate of housing inspection.
(a) Except as provided in paragraph (c) of this section, a facility
or real property to be used for housing a migrant agricultural worker
shall not be occupied by any migrant agricultural worker unless either a
State or local health authority or other appropriate agency, including a
Federal agency, has certified that the facility or real property meets
applicable safety and health standards.
(b) Except as provided in paragraph (c) of this section, the person
who owns or controls a facility or real property shall not permit it to
be occupied by any migrant agricultural worker unless a copy of a
certificate of occupancy from the State, local or Federal agency which
conducted the housing safety and health inspection is posted at the site
of the facility or real property. The original of such certificate of
occupancy shall be retained by such person for three years and made
available for inspection in accordance with section 512 of the Act.
(c) If a request for an inspection of a facility or real property is
made to the appropriate State, local or Federal agency at least forty-
five (45) days prior to the date on which it is to be occupied by a
migrant agricultural worker but the agency has not conducted an
inspection by such date, the facility or property may be occupied by
migrant agricultural workers unless prohibited by State law.
(d) Receipt and posting of a certificate of occupancy as provided
under paragraph (b) of this section, or the failure of an agency to
inspect a facility or property within the forty-five (45) day time
period, shall not relieve the person who owns or controls a facility or
property from the responsibility of ensuring that such facility or
property meets the applicable State and Federal safety and health
standards. Once such facility or property is occupied, such person shall
supervise and continually maintain such facility or property so as to
ensure that it remains in compliance with the applicable safety and
health standards.
Subpart E_Enforcement
Sec. 500.140 General.
Whenever the Secretary believes that the Act or these regulations
have been violated he shall take such action and institute such
proceedings as he deems appropriate, including (but not limited to) the
following:
(a) Recommend to the Attorney General the institution of criminal
proceedings against any person who willfully and knowingly violates the
Act or these regulations;
(b) Recommend to the Attorney General the institution of criminal
proceedings against any farm labor contractor who recruits, hires,
employs, or uses, with knowledge, the services of any illegal alien, as
defined in Sec. 500.20(n) of these regulations, if such farm labor
contractor has:
(1) Been refused issuance or renewal of, or has failed to obtain, a
Certificate of Registration, or
(2) Is a farm labor contractor whose certificate has been suspended
or revoked;
(c) Petition any appropriate District Court of the United States for
temporary or permanent injunctive relief to prohibit violation of the
Act or these regulations by any person;
[[Page 44]]
(d) Assess a civil money penalty against any person for any
violation of the Act or these regulations;
(e) Refer any unpaid civil money penalty which has become a final
and unappealable order of the Secretary or a final judgment of a court
in favor of the Secretary to the Attorney General for recovery;
(f) Revoke or suspend or refuse to issue or renew any Certificate of
Registration authorized by the Act or these regulations;
(g) Deny the facilities and services afforded by the Wagner-Peyser
Act to any farm labor contractor who refuses or fails to produce, when
asked, a valid Certificate of Registration;
(h) Institute action in any appropriate United States District Court
against any person who, contrary to the provisions of section 505(a) of
the Act, discriminates against any migrant or seasonal agricultural
worker.
Sec. 500.141 Concurrent actions.
The taking of any one of the actions referred to in Sec. 500.140
shall not be a bar to the concurrent taking of any other action
authorized by the Act and these regulations.
Sec. 500.142 Representation of the Secretary.
(a) Except as provided in section 518(a) of title 28, U.S. Code,
relating to litigation before the Supreme Court, the Solicitor of Labor
may appear for and represent the Secretary in any civil litigation
brought under the Act; but all such litigation shall be subject to the
direction and control of the Attorney General.
(b) The Solicitor of Labor, through the authorized representatives
identified in Sec. 500.231, shall represent the Secretary in all
administrative hearings under the Act and these regulations.
Sec. 500.143 Civil money penalty assessment.
(a) A civil money penalty may be assessed for each violation of the
Act or these regulations.
(b) In determining the amount of penalty to be assessed for any
violation of the Act or these regulations the Secretary shall consider
the type of violation committed and other relevant factors, including
but not limited to the following:
(1) Previous history of violation or violations of this Act and the
Farm Labor Contractor Registration Act;
(2) The number of workers affected by the violation or violations;
(3) The gravity of the violation or violations;
(4) Efforts made in good faith to comply with the Act (such as when
a joint employer agricultural employer/association provides employment-
related benefits which comply with applicable law to agricultural
workers, or takes reasonable measures to ensure farm labor contractor
compliance with legal obligations);
(5) Explanation of person charged with the violation or violations;
(6) Commitment to future compliance, taking into account the public
health, interest or safety, and whether the person has previously
violated the Act;
(7) The extent to which the violator achieved a financial gain due
to the violation, or the potential financial loss or potential injury to
the workers.
[48 FR 36741, Aug. 12, 1983, as amended at 62 FR 11748, Mar. 12, 1997]
Sec. 500.144 Civil money penalties--payment and collection.
Where the assessment is directed in a final order by the Secretary
or in a final judgment issued by a United States District Court, the
amount of the penalty is immediately due and payable to the United
States Department of Labor. The person assessed such penalty shall remit
promptly the amount thereof, as finally determined, to the Secretary by
certified check or by money order, made payable to the order of ``Wage
and Hour Division, Labor.'' The remittance shall be delivered or mailed
either to the Administrator, in Washington, DC, or to the Wage and Hour
Division Regional Office for the area in which the violations occurred.
Sec. 500.145 Registration determinations.
Section 500.51 set forth the standards under which the Secretary may
refuse to issue or to renew, or may suspend or revoke, a Certificate of
Registration
[[Page 45]]
(including a Farm Labor Contractor Employee Certificate of
Registration).
Sec. 500.146 Continuation of matters involving violations of FLCRA.
(a) Any matter involving the revocation, suspension, or refusal to
renew a Certification of Registration issued under FLCRA and any matter
involving the refusal to issue a certificate authorized under FLCRA
shall continue through final administrative determination in accordance
with the provisions of FLCRA and the regulations issued thereunder.
(b) Any matter involving the assessment of a civil money penalty for
a violation of FLCRA will continue through final administrative
determination in accordance with the provisions of FLCRA and the
regulations issued thereunder.
(c) The rules of practice for implementation of administrative
enforcement for violations of FLCRA referred to the Office of the Chief
Administrative Law Judge on or after April 14, 1983, shall be the rules
of practice provided in Sec. Sec. 500.220 through 500.262 and the
official record shall be maintained in accordance with Sec. Sec.
500.270 and 500.271 of these regulations.
(d) The rules of practice for implementation of administrative
enforcement for violations of FLCRA referred to the Office of the Chief
Administrative Law Judge prior to April 14, 1983 shall be the rules of
practice provided in 29 CFR 40.201 through 40.262.
Sec. 500.147 Continuation of matters involving violations of section
106 of MSPA.
Any matter involving the revocation, suspension, refusal to issue or
to renew a certificate of registration or any matter involving the
assessment of a civil money penalty, for a violation of section 106 of
MSPA, which occurred prior to June 1, 1987, shall continue through final
administrative determination in accordance with the provisions of MSPA
and these regulations.
[54 FR 13329, Mar. 31, 1989]
Agreements With Federal and State Agencies
Sec. 500.155 Authority.
Section 513 of the Act authorizes the Secretary to enter into
agreements with Federal and State agencies (a) to use their facilities
and services, (b) to delegate (subject to subsection 513(b) of the Act)
to Federal and State agencies such authority (other than rulemaking) as
he determines may be useful in carrying out the purposes of the Act, and
(c) to allocate or transfer funds to, or otherwise pay or reimburse,
such agencies for expenses incurred pursuant to paragraphs (a) or (b) of
this section.
Sec. 500.156 Scope of agreements with Federal agencies.
Every agreement between the Secretary and any other Federal agency
under the authority referred to in Sec. 500.155 of this part shall
contain terms and conditions mutually agreeable to both parties, and
shall contain such delegation of authority as the Secretary deems
useful.
Sec. 500.157 Scope of agreements with State agencies.
(a) Every agreement between the Secretary and any State agency under
the authority referred to in Sec. 500.155 of this part shall be in
writing.
(b) Any delegation to a State agency by the Secretary under such
authority shall be made pursuant to approval of a written State plan
submitted in accordance with Sec. 500.159 which shall: (1) Include a
description of each function to be performed, the method of performing
each such function, and the resources to be devoted to the performance
of each such function, (2) provide assurances satisfactory to the
Secretary that the State agency will comply with its description under
paragraph (b)(1) of this section and that the State agency's performance
of the delegated functions will be at least comparable to the
performance of such functions by the Department of Labor; and (3)
contain a certification of the Attorney General of such State, or, if
the Attorney General is not authorized to make such a statement, the
State official who is so authorized, that an
[[Page 46]]
agreement pursuant to such State plan is valid under the laws of that
State.
Sec. 500.158 Functions delegatable.
The Secretary may delegate to the State such functions as he deems
useful including the
(a) Receipt, handling and processing of applications for
certificates of registration;
(b) Issuance of certificates of registration;
(c) Conduct of various investigations; and
(d) Enforcement of the Act.
Sec. 500.159 Submission of plan.
(a) Any State agency desiring to enter into an agreement pursuant to
section 513 of the Act shall submit a State plan in such form and in
such detail as the Secretary shall direct.
(b) Each such plan shall include, at least, the following:
(1) The delegation sought;
(2) The State authority for performing such delegated functions;
(3) A description of the manner in which the State intends to carry
out such functions; and
(4) The estimated cost of carrying out such functions.
Sec. 500.160 Approved State plans.
(a) The Secretary, in accordance with the authority referred to in
Sec. 500.155 of this part, has delegated the following functions to the
States listed herein below:
------------------------------------------------------------------------
State Function
------------------------------------------------------------------------
Florida............................. Receive, handle, process
applications and issue
certificates of registration.
New Jersey.......................... Receive, handle, process
applications and issue
certificates of registration.
Virginia............................ Receive, handle, process
applications and issue
certificates of registration.
------------------------------------------------------------------------
(b) Every State agreement entered into pursuant to the authority
referred to in Sec. 500.155 of this part shall be available for public
inspection and copying in accordance with 29 CFR part 70.
(c) Every enumerated delegated function shall be valid in all
states.
[48 FR 36741, Aug. 12, 1983, as amended at 49 FR 5112, Feb. 10, 1984; 50
FR 42163, Oct. 18, 1985]
Sec. 500.161 Audits.
The Secretary shall conduct audits as he deems necessary of the
State plans, but on not less than an annual basis.
Sec. 500.162 Reports.
The Secretary shall require such reports as he deems necessary of
activities conducted pursuant to State plans, but on not less than an
annual basis.
Central Public Registry
Sec. 500.170 Establishment of registry.
The Administrator shall establish a central public registry of all
persons issued a Certificate of Registration or a Farm Labor Contractor
Employee Certificate. The central public registry shall be available at
the Regional Offices of the Wage and Hour Division and its National
Office in Washington, DC. Information filed therein shall be made
available upon request. Requests for information contained in the
registry may also be directed by mail to the Administrator, Wage and
Hour Division. Attn: MSPA, U.S. Department of Labor, Washington, DC
20210. Alternatively, requests for registry information may be made by
telephone by calling 1-866-4US-WAGE (1-866-487-9243), a toll-free
number, during the hours of 8 a.m. to 5 p.m., in your time zone, Monday
through Friday.
[67 FR 76986, Dec. 16, 2002]
Subpart F_Administrative Proceedings
General
Sec. 500.200 Establishment of procedures and rules of practice.
This subpart codifies and establishes the procedures and rules of
practice necessary for the administrative enforcement of the Act.
Sec. 500.201 Applicability of procedures and rules.
(a) The procedures and rules contained herein prescribe the
administrative process necessary for a determination:
[[Page 47]]
(1) To suspend or revoke, or to refuse to issue or renew, a
Certificate of Registration authorized under the Act and these
regulations; and
(2) To impose an assessment of civil money penalties for violations
of the Act or of these regulations.
(b) The procedures and rules contained herein also specify the
administrative responsibility under section 102(5) of the Act with
regard to a designation by a court of the Secretary as an agent of an
applicant for a certificate of registration in any action against such
applicant, if said applicant has left the jurisdiction in which the
action is commenced or otherwise has become unavailable to accept
service.
Procedures Relating to Hearing
Sec. 500.210 Written notice of determination required.
(a) Whenever the Secretary determines to suspend or revoke, or to
refuse to issue or renew, a Certificate of Registration, the applicant
for or the holder of such certificate shall be notified in writing of
such determination.
(1) In cases involving a determination relating to a Certificate of
Registration applied for by, or issued to, a farm labor contractor,
written notice shall also be given to every applicant for or holder of a
Certificate of Registration as an employee of such contractor.
(2) In cases involving a determination relating to a Farm Labor
Contractor Employee Certificate of Registration, written notice shall
also be given to the farm labor contractor of such applicant or
certificate holder.
(b) Whenever the Secretary determines to assess a civil money
penalty for a violation of the Act or these regulations, the person
against whom such penalty is assessed shall be notified in writing of
such determination.
Sec. 500.211 Contents of notice.
The notice required by Sec. 500.210 shall:
(a) Set forth the determination of the Secretary and the reason or
reasons therefor.
(b) Set forth, in the case of a civil money penalty assessment:
(1) A description of each violation; and
(2) The amount assessed for each violation.
(c) Set forth the right to request a hearing on such determination.
(d) Inform any affected person or persons that in the absence of a
timely request for a hearing, the determination of the Secretary shall
become final and unappealable.
(e) Set forth the time and method for requesting a hearing, and the
procedures relating thereto, as set forth in Sec. 500.212.
Sec. 500.212 Request for hearing.
(a) Any person desiring to request an administrative hearing on a
determination referred to in Sec. 500.210 shall make such request in
writing to the official who issued the determination, at the Wage and
Hour Division address appearing on the determination notice. Such
request must be made no later than thirty (30) days after the date of
issuance of the notice referred to in Sec. 500.210.
(b) The request for such hearing shall be delivered in person or by
mail to the Wage and Hour Division office at the address appearing on
the determination notice upon which the request for a hearing is based,
within the time set forth in paragraph (a) of this section. For the
affected person's protection, if the request is by mail, it should be by
certified mail.
(c) No particular form is prescribed for any request for hearing
permitted by this part. However, any such request shall:
(1) Be typewritten or legibly written on size 8\1/
2\x11 paper;
(2) Specify the issue or issues stated in the notice of
determination giving rise to such request;
(3) State the specific reason or reasons why the person requesting
the hearing believes such determination is in error;
(4) Be signed by the person making the request or by an authorized
representative of such person; and
(5) Include the address at which such person or authorized
representative desires to receive further communications relating
thereto.
[[Page 48]]
(d) Civil money penalties under FLCRA shall be treated as follows:
(1) Determinations to assess civil money penalties for violations of
FLCRA made prior to April 14, 1983 shall continue until a final
administrative determination shall have been made in accordance with 29
CFR part 40.
(2) Determinations to assess civil money penalties for violations of
FLCRA arising prior to April 14, 1983, made on or after April 14, 1983,
shall continue until a final administrative determination shall have
been made in accordance with these regulations.
[48 FR 36741, Aug. 12, 1983, as amended at 54 FR 13329, Mar. 31, 1989;
57 FR 5942, Feb. 18, 1992; 71 FR 16665, Apr. 3, 2006]
Procedures Relating to Substituted Service
Sec. 500.215 Change of address.
(a) Pursuant to section 105(1) of the Act, every holder of a
Certificate of Registration shall notify the Secretary within thirty
(30) days of each change of permanent place of residence. Said persons
may also furnish additional mailing addresses.
(b) The notification required in paragraph (a) of this section shall
be in writing, by certified mail and addressed to the Administrator,
Wage and Hour Division, Employment Standards Administration, 200
Constitution Avenue, NW., Washington, DC 20210.
(c) Such change of address shall be deemed effective upon receipt by
the Administrator, unless a later date is specified in the notice.
Sec. 500.216 Substituted service.
(a) Pursuant to section 102(5) of the Act, the Secretary, when so
designated by a court, shall accept service of summons in any action
arising under the Act or these regulations against any applicant for or
any holder of a Certificate of Registration who has left the
jurisdiction in which such action is commenced or otherwise has become
unavailable to accept such service.
(b) Acceptance of service of summons referred to in paragraph (a) of
this section shall be under such terms and conditions as are set by the
court in its designation of the Secretary for the purpose of section
102(5) of the Act.
(c) To be effective, such service shall be made by delivery
personally or by certified mail, either to the Administrator of the Wage
and Hour Division in Washington, DC, or to the Administrator's
authorized representative located in the area in which the action has
been commenced.
Sec. 500.217 Responsibility of Secretary for service.
Upon receipt of any substituted service, as described in Sec.
500.216, the same shall be forwarded by certified mail to the permanent
address furnished by the person for whom service is accepted and to such
other address as may be determined appropriate by the Secretary. Such
mailing shall complete the Secretary's responsibility in connection with
the substituted service requirement of the Act.
Rules of Practice
Sec. 500.219 General.
Except as specifically provided in these regulations, the ``Rules of
Practice and Procedure for Administrative Hearings Before the Office of
Administrative Law Judges'' established by the Secretary at 29 CFR part
18 shall apply to administrative proceedings under MSPA.
[48 FR 36741, Aug. 21, 1983. Redesignated at 54 FR 13329, Mar. 31, 1989]
Sec. 500.220 Service of determinations and computation of time.
(a) Service of determinations to suspend, revoke, refuse to issue,
or refuse to renew a certificate of registration or to assess a civil
money penalty shall be made by personal service to the individual,
officer of a corporation, or attorney of record or by mailing the
determination to the last known address of the individual, officer, or
attorney. If done by certified mail, service is complete upon mailing.
If done by regular mail or in person, service is complete upon receipt
by the addressee or the addressee's representative;
(b) Time will be computed beginning with the day following the
action and
[[Page 49]]
includes the last day of the period unless it is a Saturday, Sunday, or
Federally observed holiday, in which case the time period includes the
next business day; and
(c) When a request for hearing is filed by mail, five (5) days shall
be added to the prescribed period during which the party has the right
to request a hearing on the determination.
[54 FR 13329, Mar. 31, 1989]
Sec. 500.221 Commencement of proceeding.
Each administrative proceeding permitted under the Act and these
regulations shall be commenced upon receipt of a timely request for
hearing filed in accordance with Sec. 500.212.
Sec. 500.222 Designation of record.
Except as provided in paragraph (c) of this section:
(a) Each administrative proceeding instituted under the Act and
these regulations shall be identified of record by a number preceded by
the year and the letters ``MSPA'' and followed by one or more of the
following designations:
(1) Proceedings involving the ``refusal to issue or to renew, or to
suspend or to revoke Certificate of Registration'' shall be designated
as ``R''.
(2) Proceedings involving the ``assessment of civil money
penalties'' shall be designated as ``P''.
(3) Proceedings involving both Certificate of Registration and
assessment of civil money penalties shall be designated as ``R and P''.
(b) The number, letter(s), and designation assigned to each such
proceeding shall be clearly displayed on each pleading, motion, brief,
or other formal document filed and docketed of record.
(c) Each administrative proceeding involving violations of FLCRA
prior to April 14, 1983 and filed with the Office of the Chief
Administrative Law Judge on or after April 14, 1983, shall be identified
of record by a number preceded by the year and the letters ``FLCRA-
MSPA'' and followed by one or more of the letter designations provided
in paragraphs (a)(1) through (a)(3) of this section, i.e., (year) -
FLCRA-MSPA-()-(R and/or P).
Sec. 500.223 Caption of proceeding.
(a) Each administrative proceeding instituted under the Act and
these regulations shall be captioned in the name of the person
requesting such hearing, and shall be styled as follows:
In The Matter of ----, Respondent.
(b) For the purposes of such administrative proceeding the
``Secretary of Labor'' shall be identified as plaintiff and the person
requesting such hearing shall be named as respondent.
Referral for Hearing
Sec. 500.224 Referral to Administrative Law Judge.
(a) Upon receipt of a timely request for a hearing filed pursuant to
and in accordance with Sec. 500.212, the Secretary, by the Associate
Solicitor for the Division of Fair Labor Standards or by the Regional
Solicitor for the Region in which the action arose, shall, by Order of
Reference, promptly refer an authenticated copy of the notice of
administrative determination complained of, and the original or a
duplicate copy of the request for hearing signed by the person
requesting such hearing or by the authorized representative of such
person, to the Chief Administrative Law Judge, for a determination in an
administrative proceeding as provided herein. The notice of
administrative determination and request for hearing shall be filed of
record in the Office of the Chief Administrative Law Judge and shall,
respectively, be given the effect of a complaint and answer thereto for
purposes of the administrative proceeding, subject to any amendment that
may be permitted under these regulations.
(b) In cases involving a denial, suspension, or revocation of a
Certificate of Registration (Farm Labor Contractor Certificate; Farm
Labor Contractor Employee Certificate) or ``certificate action,''
including those cases where the farm labor contractor has requested a
hearing on civil money penalty(ies) as well as on the certificate
action, the date of the hearing shall be not more than sixty (60) days
from the date on which the Order of Reference is filed. No request for
postponement
[[Page 50]]
shall be granted except for compelling reasons.
(c) A copy of the Order of Reference, together with a copy of these
regulations, shall be served by counsel for the Secretary upon the
person requesting the hearing, in the manner provided in 29 CFR 18.3.
[48 FR 36741, Aug. 12, 1983, as amended at 61 FR 24866, May 16, 1996]
Sec. 500.225 Notice of docketing.
The Chief Administrative Law Judge shall promptly notify the parties
of the docketing of each matter.
Sec. 500.226 Service upon attorneys for the Department of Labor--number
of copies.
Two copies of all pleadings and other documents required for any
administrative proceeding provided herein shall be served on the
attorneys for the Department of Labor. One copy shall be served on the
Associate Solicitor, Division of Fair Labor Standards, Office of the
Solicitor, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210, and one copy on the Attorney representing the
Department in the proceeding.
Procedures Before Administrative Law Judge
Sec. 500.231 Appearances; representation of the Department of Labor.
The Associate Solicitor, Division of Fair Labor Standards, and such
other counsel, as designated, shall represent the Secretary in any
proceeding under these regulations.
Sec. 500.232 Consent findings and order.
(a) General. At any time after the commencement of a proceeding
under this part, but prior to the reception of evidence in any such
proceeding, a party may move to defer the receipt of any evidence for a
reasonable time to permit negotiation of an agreement containing consent
findings and an order disposing of the whole or any part of the
proceeding. The allowance of such deferment and the duration thereof
shall be at the discretion of the Administrative Law Judge, after
consideration of the nature of the proceeding, the requirements of the
public interest, the representations of the parties, and the probability
of an agreement being reached which will result in a just disposition of
the issues involved.
(b) Content. Any agreement containing consent findings and an order
disposing of a proceeding or any part thereof shall also provide:
(1) That the order shall have the same force and effect as an order
made after full hearing;
(2) That the entire record on which any order may be based shall
consist solely of the notice of administrative determination (or amended
notice, if one is filed), and the agreement;
(3) A waiver of any further procedural steps before the
Administrative Law Judge; and
(4) A waiver of any right to challenge or contest the validity of
the findings and order entered into in accordance with the agreement.
(c) Submission. On or before the expiration of the time granted for
negotiations, the parties or their authorized representatives or their
counsel may:
(1) Submit the proposed agreement for consideration by the
Administrative Law Judge; or
(2) Inform the Administrative Law Judge that agreement cannot be
reached.
(d) Disposition. In the event an agreement containing consent
findings and an order is submitted within the time allowed therefor, the
Administrative Law Judge, within thirty (30) days thereafter, shall, if
satisfied with its form and substance, accept such agreement by issuing
a decision based upon the agreed findings.
Post-Hearing Procedures
Sec. 500.262 Decision and order of Administrative Law Judge.
(a) The Administrative Law Judge shall prepare, as promptly as
practicable after the expiration of the time set for filing proposed
findings and related papers a decision on the issues referred by the
Secretary.
(b) In cases involving certificate actions as described in Sec.
500.224(b), the Administrative Law Judge shall issue a decision within
ninety (90) calendar days after the close of the hearing.
[[Page 51]]
(c) The decision of the Administrative Law Judge shall be limited to
a determination whether the respondent has violated the Act or these
regulations, and the appropriateness of the remedy or remedies imposed
by the Secretary. The Administrative Law Judge shall not render
determinations on the legality of a regulatory provision or the
constitutionality of a statutory provision.
(d) The decision of the Administrative Law Judge, for purposes of
the Equal Access to Justice Act (5 U.S.C. 504), shall be limited to
determinations of attorney fees and/or other litigation expenses in
adversary proceedings requested pursuant to Sec. 500.212 which involve
the modification, suspension or revocation of a Certificate of
Registration issued under the Act and these Regulations, and/or the
imposition of a civil money penalty assessed for a violation of the Act
or these Regulations. The Administrative Law Judge shall have no power
or authority to award attorney fees and/or other litigation expenses
pursuant to the provisions of the Equal Access to Justice Act or
Regulations issued thereunder in any proceeding under MSPA or these
Regulations involving the refusal to issue or renew a Certificate of
Registration.
(e) The decision of the Administrative Law Judge shall include a
statement of findings and conclusions, with reasons and basis therefor,
upon each material issue presented on the record. The decision shall
also include an appropriate order which may be to affirm, deny, reverse,
or modify, in whole or in part, the determination of the Secretary. The
reason or reasons for such order shall be stated in the decision.
(f) The Administrative Law Judge shall transmit to the Chief
Administrative Law Judge the entire record including the decision. The
Chief Administrative Law Judge shall serve copies of the decision on
each of the parties.
(g) The decision when served shall constitute the final order of the
Secretary unless the Secretary, pursuant to section 103(b)(2) or section
503(b)(2) of the Act, modifies or vacates the decision and order of the
Administrative Law Judge.
(h) Except as provided in Sec. Sec. 500.263 through 500.268, the
administrative remedies available to the parties under the Act will be
exhausted upon service of the decision of the Administrative Law Judge.
[48 FR 36741, Aug. 12, 1983, as amended at 61 FR 24866, May 16, 1996]
Modification or Vacation of Order of Administrative Law Judge
Sec. 500.263 Authority of the Secretary.
The Secretary may modify or vacate the Decision and Order of the
Administrative Law Judge whenever he concludes that the Decision and
Order:
(a) Is inconsistent with a policy or precedent established by the
Department of Labor,
(b) Encompasses determinations not within the scope of the authority
of the Administrative Law Judge,
(c) Awards attorney fees and/or other litigation expenses pursuant
to the Equal Access to Justice Act which are unjustified or excessive,
or
(d) Otherwise warrants modifying or vacating.
[54 FR 13330, Mar. 31, 1989]
Sec. 500.264 Procedures for initiating review.
(a) Within twenty (20) days after the date of the decision of the
Administrative Law Judge, the respondent, the Administrator, or any
other party desiring review thereof, may file with the Secretary an
original and two copies of a petition for issuance of a Notice of Intent
as described under Sec. 500.265. The petition shall be in writing and
shall contain a concise and plain statement specifying the grounds on
which review is sought. A copy of the Decision and Order of the
Administrative Law Judge shall be attached to the petition.
(b) Copies of the petition shall be served upon all parties to the
proceeding and on the Chief Administrative Law Judge.
[54 FR 13330, Mar. 31, 1989]
Sec. 500.265 Implementation by the Secretary.
(a) Whenever, on the Secretary's own motion or upon acceptance of a
party's petition, the Secretary believes that a
[[Page 52]]
Decision and Order may warrant modifying or vacating, the Secretary
shall issue a Notice of Intent to modify or vacate.
(b) The Notice of Intent to Modify or Vacate a Decision and Order
shall specify the issue or issues to be considered, the form in which
submission shall be made (i.e., briefs, oral argument, etc.), and the
time within which such presentation shall be submitted. The Secretary
shall closely limit the time within which the briefs must be filed or
oral presentations made, so as to avoid unreasonable delay.
(c) The Notice of Intent shall be issued within thirty (30) days
after the date of the Decision and Order in question.
(d) Service of the Notice of Intent shall be made upon each party to
the proceeding, and upon the Chief Administrative Law Judge, in person
or by certified mail.
[54 FR 13330, Mar. 31, 1989]
Sec. 500.266 Responsibility of the Office of Administrative Law Judges.
Upon receipt of the Secretary's Notice of Intent to Modify or Vacate
a Decision and Order of an Administrative Law Judge, the Chief
Administrative Law Judge shall, within fifteen (15) days, index, certify
and forward a copy of the complete hearing record to the Secretary.
[48 FR 36741, Aug. 21, 1983. Redesignated at 54 FR 13330, Mar. 31, 1989]
Sec. 500.267 Filing and service.
(a) Filing. All documents submitted to the Secretary shall be filed
with the Secretary of Labor, U.S. Department of Labor, Washington, DC
20210.
(b) Number of copies. An original and two copies of all documents
shall be filed.
(c) Computation of time for delivery by mail. Documents are not
deemed filed with the Secretary until actually received by that office.
All documents, including documents filed by mail, must be received by
the Secretary either on or before the due date.
(d) Manner and proof of service. A copy of all documents filed with
the Secretary shall be served upon all other parties involved in the
proceeding. Service under this section shall be by personal delivery or
by mail. Service by mail is deemed effected at the time of mailing to
the last known address.
[54 FR 13330, Mar. 31, 1989]
Sec. 500.268 Final decision of the Secretary.
(a) The Secretary's final Decision and Order shall be issued within
120 days from the notice of intent granting the petition, except that in
cases involving the review of an Administrative Law Judge decision in a
certificate action as described in Sec. 500.224(b), the Secretary's
final decision shall be issued within ninety (90) days from the date
such notice. The Secretary's Decision and Order shall be served upon all
parties and the Chief Administrative Law Judge, in person or by
certified mail.
(b) Upon receipt of an Order of the Secretary modifying or vacating
the Decision and Order of an Administrative Law Judge, the Chief
Administrative Law Judge shall substitute such Order for the Decision
and Order of the Administrative Law Judge.
[54 FR 13330, Mar. 31, 1989, as amended at 61 FR 24866, May 16, 1996]
Sec. 500.269 Stay pending decision of the Secretary.
(a) The filing of a petition seeking review by the Secretary of a
Decision and Order of an Administrative Law Judge, pursuant to Sec.
500.264, does not stop the running of the thirty-day time limit in which
respondent may file an appeal to obtain a review in the United States
District Court of an administrative order, as provided in section
103(b)(2) or section 503(b)(2) of the Act, unless the Secretary issues a
Notice of Intent pursuant to Sec. 500.265.
(b) In the event a respondent has filed a notice of appeal of the
Administrative Law Judge's Decision and Order in a United States
District Court and the Secretary issues a Notice of Intent, the
Secretary will seek a stay of proceedings in the Court until such time
as the Secretary issues the final decision, as provided in Sec.
500.268.
(c) Where the Secretary has issued a Notice of Intent, the time for
filing an appeal under sections 103(b)(2) or 503(b)(2) of the Act shall
commence
[[Page 53]]
from the date of the issuance of the Secretary's final decision, as
provided in Sec. 500.268.
[54 FR 13330, Mar. 31, 1989]
Record
Sec. 500.270 Retention of official record.
The official record of every completed administrative hearing
provided by these regulations shall be maintained and filed under the
custody and control of the Chief Administrative Law Judge.
Sec. 500.271 Certification of official record.
Upon receipt of timely notice of appeal to a United States District
Court pursuant to section 103(c) or 503(c) of the Act, the Chief
Administrative Law Judge shall promptly certify and file with the
appropriate United States District Court, a full, true, and correct copy
of the entire record, including the transcript of proceedings.
PART 501_ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN
AGRICULTURAL WORKERS ADMITTED UNDER SECTION 216 OF THE IMMIGRATION AND
NATIONALITY ACT--Table of Contents
Subpart A_General Provisions
Sec.
501.0 Introduction.
501.1 Purpose and scope.
501.2 Coordination of intake between DOL agencies.
501.3 Discrimination prohibited.
501.4 Waiver of rights prohibited.
501.5 Investigation authority of Secretary.
501.6 Prohibition on interference with Department of Labor Officials.
501.7 Accuracy of information, statements, data.
501.10 Definitions.
Subpart B_Enforcement of Work Contracts
501.15 Enforcement.
501.16 General.
501.17 Concurrent actions.
501.18 Representation of the Secretary.
501.19 Civil money penalty assessment.
501.20 Enforcement of Wage and Hour investigative authority.
501.21 Referral of findings to ETA.
501.22 Civil money penalties--payment and collection.
Subpart C_Administrative Proceedings
501.30 Applicability of procedures and rules.
Procedures Relating to Hearing
501.31 Written notice of determination required.
501.32 Contents of notice.
501.33 Request for hearing.
Rules of Practice
501.34 General.
501.35 Commencement of proceeding.
501.36 Caption of proceeding.
Referral for Hearing
501.37 Referral to Administrative Law Judge.
501.38 Notice of docketing.
501.39 Service upon attorneys for the Department of Labor--number of
copies.
Procedures Before Administrative Law Judge
501.40 Consent findings and order.
Post-Hearing Procedures
501.41 Decision and order of Administrative Law Judge.
Review of Administrative Law Judge's Decision
501.42 Procedures for initiating and undertaking review.
501.43 Responsibility of the Office of Administrative Law Judges.
501.44 Additional information, if required.
501.45 Final decision of the Secretary.
Record
501.46 Retention of official record.
501.47 Certification.
Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1186.
Source: 52 FR 20527, June 1, 1987, unless otherwise noted.
Subpart A_General Provisions
Sec. 501.0 Introduction.
These regulations cover the enforcement of all contractual
obligations provisions applicable to the employment of H-2A workers
under section 216 of the Immigration and Nationality Act (INA), as
amended by the Immigration Reform and Control Act of 1986 (IRCA). These
regulations are also applicable to the employment of other
[[Page 54]]
workers hired by employers of H-2A workers in the occupations and for
the period of time set forth in the job order approved by ETA as a
condition for granting H-2A certification, including any extension
thereof. Such other workers hired by H-2A employers are hereafter
referred to as engaged in corresponding employment.
Sec. 501.1 Purpose and scope.
(a) Statutory standard. Section 216(a) of the INA provides that--
(1) A petition to import an alien as an H-2A worker (as defined in
subsection (i)(2) may not be approved by the Attorney General unless the
petitioner has applied to the Secretary of Labor for a certification
that--
(A) There are not sufficient workers who are able, willing, and
qualified, and who will be available at the time and place needed, to
perform the labor or services involved in the petition, and
(B) The employment of the alien in such labor or services will not
adversely affect the wages and working conditions of workers in the
United States similarly employed.
(b) Role of the ETA, USES. The issuance and denial of labor
certification under section 216 of the INA has been delegated by the
Secretary of Labor to the Employment and Training Administration (ETA).
In general, matters concerning the obligations of an employer of H-2A
workers related to the labor certification process are administered and
enforced by ETA. Included within ETA's jurisdiction are such issues as
whether U.S. workers were available, whether positive recruitment was
conducted, whether there was a strike or lockout, the methodology for
establishing adverse effect wage rates, whether workers' compensation
insurance was provided, whether employment was offered to U.S. workers
for up to 50 percent of the contract period and other similar matters.
The regulations pertaining to the issuance and denial of labor
certification for temporary alien workers by the Employment and Training
Administration are found in title 20 CFR part 655.
(c) Role of ESA, Wage and Hour Division. Section 216(g)(2) of the
INA provides that--
[T]he Secretary of Labor is authorized to take such actions
including imposing appropriate penalties and seeking appropriate
injunctive relief and specific performance of contractual obligations,
as may be necessary to assure employer compliance with terms and
conditions of employment under this section.
Certain investigation, inspection and law enforcement functions to carry
out the provisions of section 216 of the INA have been delegated by the
Secretary of Labor to the Employment Standards Administration (ESA),
Wage and Hour Division. In general, matters concerning the obligations
of the work contract between an employer of H-2A workers and the H-2A
workers and other workers in corresponding employment hired by H-2A
employers are enforced by ESA. Included within the enforcement
responsibility of ESA, Wage and Hour Division are such matters as the
payment of required wages, transportation, meals and housing provided
during the employment. The Wage and Hour Division has the responsibility
to carry out investigations, inspections and law enforcement functions
and in appropriate instances impose penalties, seek injunctive relief
and specific performance of contractual obligations, including recovery
of unpaid wages.
(d) Effect of regulations. The amendments to the INA made by title
III of the IRCA apply to petitions and applications filed on and after
June 1, 1987. Accordingly, the enforcement functions carried out by the
Wage and Hour Division under the INA and these regulations apply to the
employment of any H-2A worker and any other workers hired by H-2A
employers in corresponding employment as the result of any petition or
application filed with the Department on and after June 1, 1987.
Sec. 501.2 Coordination of intake between DOL agencies.
Complaints received by ETA, or any State Employment Service Agency
regarding contractual H-2A labor standards between the employer and the
employee will be immediately forwarded to the appropriate Wage and Hour
office for appropriate action under these regulations.
[[Page 55]]
Sec. 501.3 Discrimination prohibited.
No person shall intimidate, threaten, restrain, coerce, blacklist,
discharge, or in any manner discriminate against any person who has:
(a) Filed a complaint under or related to section 216 of the INA or
these regulations;
(b) Instituted or caused to be instituted any proceedings related to
section 216 of the INA or these regulations;
(c) Testified or is about to testify in any proceeding under or
related to section 216 of the INA or these regulations;
(d) Exercised or asserted on behalf of himself or others any right
or protection afforded by section 216 of the INA or these regulations.
(e) Consulted with an employee of a legal assistance program or an
attorney on matters related to section 216 of the INA (8 U.S.C. 1186),
or to this subpart or any other DOL regulation promulgated pursuant to
section 216 of the INA.
Allegations of discrimination in employment against any person will be
investigated by Wage and Hour. Where Wage and Hour has determined
through investigation that such allegations have been substantiated
appropriate remedies may be sought. Wage and Hour may assess civil money
penalties, seek injunctive relief, and/or seek additional remedies
necessary to make the employee whole as a result of the discrimination,
as appropriate, and may recommend to ETA that labor certification of any
violator be denied in the future.
Sec. 501.4 Waiver of rights prohibited.
No person shall seek to have an H-2A worker, or other worker
employed in corresponding employment by an H-2A employer, waive rights
conferred under section 216 of the INA or under these regulations. Such
waiver is against public policy. Any agreement by an employee purporting
to waive or modify any rights inuring to said person under the Act or
these regulations shall be void as contrary to public policy, except
that a waiver or modification of rights or obligations hereunder in
favor of the Secretary shall be valid for purposes of enforcement of the
provisions of the Act or these regulations. This does not prevent
agreements to settle private litigation.
Sec. 501.5 Investigation authority of Secretary.
(a) General. The Secretary, either pursuant to a complaint or
otherwise, shall, as may be appropriate, investigate and, in connection
therewith, enter and inspect such places and vehicles (including
housing) and such records (and make transcriptions thereof), question
such persons and gather such information as deemed necessary by the
Secretary to determine compliance with contractual obligations under
section 216 of the INA or these regulations.
(b) Failure to permit investigation. Where any person using the
services of an H-2A worker does not permit an investigation concerning
the employment of his or her workers the Wage and Hour Division shall
report such occurrence to ETA and may recommend denial of future labor
certifications to such person. In addition, Wage and Hour may take such
action as may be appropriate, including the seeking of an injunction or
assessing civil money penalties, against any person who has failed to
permit Wage and Hour to make an investigation.
(c) Confidential investigation. The Secretary shall conduct
investigations in a manner which protects the confidentiality of any
complainant or other person who provides information to the Secretary in
good faith.
(d) Report of violations. Any person may report a violation of the
work contract obligations of section 216 of the INA or these regulations
to the Secretary by advising any local office of the Employment Service
of the various States, any office of ETA, any office of the Wage and
Hour Division, ESA, U.S. Department of Labor, or any other authorized
representative of the Secretary. The office or person receiving such a
report shall refer it to the appropriate office of the Wage and Hour
Division, ESA, for the area in which the reported violation is alleged
to have occurred.
[[Page 56]]
Sec. 501.6 Prohibition on interference with Department of Labor
officials.
No person shall interfere with any official of the Department of
Labor assigned to perform an investigation, inspection or law
enforcement function pursuant to the INA and these regulations during
the performance of such duties. Wage and Hour will seek such action as
it deems appropriate, including an injunction to bar any such
interference with an investigation and/or assess a civil money penalty
therefor. In addition Wage and Hour may refer a report of the matter to
ETA with a recommendation that the person's labor certification be
denied in the future. (Federal statutes which prohibit persons from
interfering with a Federal officer in the course of official duties are
found at 18 U.S.C. 111 and 18 U.S.C. 1114.)
Sec. 501.7 Accuracy of information, statements, data.
Information, statements and data submitted in compliance with
provisions of the Act or these regulations are subject to title 18,
section 1001, of the U.S. Code, which provides:
Section 1001. Statements or entries generally.
Whoever, in any matter within the jurisdiction of any department or
agency of the United States knowingly and willfully falsifies, conceals
or covers up by any trick, scheme, or device a material fact, or makes
any false, fictitious or fraudulent statements or representations, or
makes or uses any false writing or document knowing the same to contain
any false, fictitious or fraudulent statement or entry, shall be fined
not more than $10,000 or imprisoned not more than five years, or both.
Sec. 501.10 Definitions.
The definitions in paragraphs (a) through (d) are set forth for
purposes of this part. In addition, the definitions in paragraphs (e)
through (v) are promulgated at 20 CFR 655.100(b), are utilized herein,
and are incorporated and set forth for information purposes.
(a) Act and INA mean the Immigration and Nationality Act, as amended
(8 U.S.C. 1101 et seq.), with reference particularly to section 216.
(b) Administrative Law Judge (ALJ) means a person within the
Department of Labor Office of Administrative Law Judges appointed
pursuant to 5 U.S.C. 3105.
(c) Administrator means the Administrator of the Wage and Hour
Division, Employment Standards Administration, U.S. Department of Labor,
and such authorized representatives as may be designated to perform any
of the functions of the Administrator under this part.
(d) Work contract means all the material terms and conditions of
employment relating to wages, hours, working conditions, and other
benefits, including those terms and conditions required by the
applicable regulations in subpart B of 20 CFR part 655, Labor
Certification Process for Temporary Agricultural Employment in the
United States, and those contained in the Application for Alien
Employment Certification and job offer under that subpart, which
contract between the employer and the worker may be in the form of a
separate written document. In the absence of a separate written work
contract incorporating the required terms and conditions of employment,
entered into between the employer and the worker, the work contract at a
minimum shall be the terms of the job order included in the application
for temporary labor certification, and shall be enforced in accordance
with these regulations.
(e) Adverse effect wage rate (AEWR) means the wage rate which the
Director has determined must be offered and paid, as a minimum, to every
H-2A worker and every U.S. worker for a particular occupation and/or
area in which an employer employs or seeks to employ an H-2A worker so
that the wages of similarly employed U.S. workers will not be adversely
affected.
(f) Agricultural labor or services. Pursuant to section
101(a)(15)(ii)(a) of the INA (8 U.S.C. 1101(a)(15)(H)(ii)(a)),
``agricultural labor or services'' is defined for the purposes of this
subpart as either ``agricultural labor'' as defined and applied in
section 3121(g) of the Internal Revenue Code of 1954 (26 U.S.C. 3121(g))
or ``agriculture'' as defined and applied in section 3(f) of the Fair
Labor Standards Act of 1938 (29 U.S.C. 203(f)). An occupation included
in either statutory definition shall be ``agricultural labor or
services'', notwithstanding the exclusion of that occupation from the
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other statutory definition. For informational purposes, the statutory
provisions are quoted below.
(1) Agricultural labor. Section 3121(g) of the Internal Revenue Code
of 1954 (26 U.S.C. 3121(g)) quoted as follows, defines the term
``agricultural labor'' to include all service performed:
(1) On a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting any
agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for, training, and management of livestock,
bees, poultry, and furbearing animals and wildlife;
(2) Services performed in the employ of the owner or tenant or other
operator of a farm, in connection with the operation, or maintenance of
such farm and its tools and equipment, or in salvaging timber or
clearing land of brush and other debris left by a hurricane, if the
major part of such service is performed on a farm;
(3) In connection with the production or harvesting of any commodity
defined as an agricultural commodity in section 15(g) of the
Agricultural Marketing Act, as amended (12 U.S.C. 1141j), or in
connection with the ginning of cotton, or in connection with the
operation or maintenance of ditches, canals, reservoirs, or waterways,
not owned or operated for profit, used exclusively for supplying and
storing water for farming purposes;
(4)(A) In the employ of the operator of a farm in handling,
planting, drying, packing, packaging, processing, freezing, grading,
storing, or delivering to storage or to market or to a carrier for
transportation to market, in its unmanufactured state, any agricultural
or horticultural commodity; but only if such operator produced more than
one-half of the commodity with respect to which such service is
performed;
(B) In the employ of a group of operators of farms (other than a
cooperative organization) in the performance of service described in
subparagraph (A), but only if such operators produced all of the
commodity with respect to which such service is performed. For purposes
of this subparagraph, any unincorporated group of operators shall be
deemed a cooperative organization if the number of operators comprising
such group is more than 20 at any time during the calendar quarter in
which such service is performed;
(C) The provisions of subparagraphs (A) and (B) shall not be deemed
to be applicable with respect to service performed in connection with
commercial canning or commercial freezing or in connection with any
agricultural or horticultural commodity after its delivery to a terminal
market for distribution for consumption; or
(5) On a farm operated for profit if such service his not in the
course of the employer's trade or business or is domestic service in a
private home of the employer.
As used in this subsection, the term farm includes stock, dairy,
poultry, fruit, fur-bearing animal, and truck farms, plantations,
ranches, nurseries, ranges, greenhouses or other similar structures used
primarily for the raising of agricultural or horticultural commodities,
and orchards.
(2) Agriculture. Section 203(f) of title 29, United States Code,
(section 3(f) of the Fair Labor Standards Act of 1938), quoted as
follows, defines agriculture to include:
(f) * * * farming in all its branches and among other things
includes the cultivation and tillage of the soil, dairying, the
production, cultivation, growing, and harvesting of any agricultural or
horticultural commodities (including commodities defined as agricultural
commodities in section 15(g) of the Agricultural Marketing Act, as
amended), the raising of livestock, bees, fur bearing animals, or
poultry, and any practices (including any forestry or lumbering
operations) performed by a farmer or on a farm as an incident to or in
conjunction with such farming operations, including preparation for
market, delivery to storage or to market or to carriers for
transportation to market.
(3) Agricultural commodity. Section 1141j(g) of title 12, United
States Code, (section 15(g) of the Agricultural Marketing Act, as
amended) quoted as follows, defines agricultural commodity to include:
(g) * * * in addition to other agricultural commodities, crude gum
(oleoresin) from a living tree, and the following products as processed
by the original producer of the crude gum (oleoresin) from which
derived: Gum spirits of turpentine, and gum rosin, as defined in section
92 of title 7.
(iv) Gum rosin. Section 92 of title 7, United States Code, quoted as
follows, defines gum spirits of turpentine and gum rosin as--
(c) Gum spirits of turpentine means spirits of turpentine made from
gum (oleoresin) from a living tree.
* * * * *
(g) Gum rosin means rosin remaining after the distillation of gum
spirits of turpentine.
(g) Of a temporary or seasonal nature--(1) On a seasonal or other
temporary basis. For the purposes of this subpart of a temporary or
seasonal nature means
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on a seasonal or other temporary basis, as defined in the Employment
Standards Administration's Wage and Hour Division's regulation at 29 CFR
500.20 under the Migrant and Seasonal Agricultural Worker Protection Act
(MSPA). For informational purposes Sec. 500.20 as it pertains to
seasonal or temporary basis is quoted below.
(2) MSPA definition. For information purposes, the definition of on
a seasonal or other temporary basis, as set forth at Sec. 500.20 of
this title, is provided below:
On a seasonal or other temporary basis means:
* * * * *
Labor is performed on a seasonal basis, where, ordinarily, the
employment pertains to or is of the kind exclusively performed at
certain seasons or periods of the year and which, from its nature, may
not be continuous or carried on throughout the year. A worker who moves
from one seasonal activity to another, while employed in agriculture or
performing agricultural labor, is employed on a seasonal basis even
though he may continue to be employed during a major portion of the
year.
* * * * *
A worker is employed on other temporary basis where he is employed
for a limited time only or the performance is contemplated for a
particular piece of work, usually of short duration. Generally,
employment, which is contemplated to continue indefinitely, is not
temporary.
* * * * *
On a seasonal or other temporary basis does not include the
employment of any foreman or other supervisory employee who is employed
by a specific agricultural employer or agricultural association
essentially on a year round basis.
* * * * *
On a seasonal or other temporary basis does not include the
employment of any worker who is living at his permanent place of
residence, when that worker is employed by a specific agricultural
employer or agricultural association on essentially a year round basis
to perform a variety of tasks for his employer and is not primarily
employed to do field work.
(3) Temporary. For the purpose of this subpart, the definition of
``temporary'' in paragraph (c)(2)(ii) of this section refers to any job
opportunity covered by this subpart where the employer needs a worker
for a position, either temporary or permanent, for a limited period of
time, which shall be for less than one year, unless the original
temporary alien agricultural labor certification is extended based on
unforeseen circumstances, pursuant to Sec. 655.106(c)(3) of this title.
(h) DOL means the U.S. Department of Labor.
(i) Employer means a person, firm, corporation or other association
or organization which suffers or permits a person to work and (1) which
has a location within the United States to which U.S. workers may be
referred for employment, and which proposes to employ workers at a place
within the United States and (2) which has an employer relationship with
respect to employees under this subpart as indicated by the fact that it
may hire, pay, fire, supervise or otherwise control the work of any such
employee. An association of employers shall be considered the sole
employer if it alone has the indicia of an employer set forth in this
definition. Such an association, however, shall be considered as a joint
employer with an employer member if it shares with the employer member
one or more of the definitional indicia.
(j) Employment Service (ES) and Employment Service (ES) System mean,
collectively, the USES, the State agencies, the local offices, and the
ETA regional offices.
(k) Employment Standards Administration means the agency within the
Department of Labor (DOL), which includes the Wage and Hour Division,
and which is charged with the carrying out certain functions of the
Secretary under the INA.
(l) Employment and Training Administration (ETA) means the agency
within the Department of Labor (DOL) which includes the U.S. Employment
Service (USES).
(m) H-2A worker means any nonimmigrant alien admitted to the United
States for agricultural labor or services of a temporary or seasonal
nature under section 101(a)(15)(H)(ii)(a) of the INA (8 U.S.C.
1101(a)(15)(H)(ii)(a)).
(n) Immigration and Naturalization Service (INS) means the component
of
[[Page 59]]
the U.S. Department of Justice which makes the determination under the
INA on whether or not to grant visa petitions to employers seeking H-2A
workers to perform temporary agricultural work in the United States.
(o) Job offer means the offer made by an employer or potential
employer of H-2A workers to both U.S. and H-2A workers describing all
the material terms and conditions of employment, including those
relating to wages, working conditions, and other benefits.
(p) Secretary means the Secretary of Labor or the Secretary's
designee.
(q) State agency means the State employment service agency
designated under section 4 of the Wagner-Peyser Act to cooperate with
the USES in the operation of the ES System.
(r) Solicitor of Labor means the Solicitor, U.S. Department of
Labor, and includes employees of the Office of the Solicitor of Labor
designated by the Solicitor to perform functions of the Solicitor under
this subpart.
(s) Temporary alien agricultural labor certification means the
certification made by the Secretary of Labor with respect to an employer
seeking to file with INS a visa petition to import an alien as an H-2A
worker, pursuant to sections 101(a)(15)(H)(ii)(a), 214 (a) and (c), and
216 of the INA that (1) there are not sufficient workers who are able,
willing, and qualified, and who will be available at the time and place
needed, to perform the agricultural labor or services involved in the
petition, and (2) the employment of the alien in such agricultural labor
or services will not adversely affect the wages and working conditions
of workers in the United States similarly employed (8 U.S.C.
1101(a)(15)(H)(ii)(a), 1184 (a) and (c), and 1186).
(t) United States Employment Service (USES) means the agency of the
U.S. Department of Labor, established under the Wagner-Peyser Act, which
is charged with administering the national system of public employment
offices and carrying out certain functions of the Secretary under the
INA.
(u) United States (U.S.) worker means any worker who, whether a U.S.
national, a U.S. citizen, or an alien, is legally permitted to work in
the job opportunity within the United States (as defined at section
101(a)(38) of the INA (8 U.S.C. 1101(a)(38)).
(v) Wages means all forms of cash remuneration to a worker by an
employer in payment for personal services.
Subpart B_Enforcement of Work Contracts
Sec. 501.15 Enforcement.
The investigations, inspections and law enforcement functions to
carry out the provisions of section 216 of the INA, as provided in these
regulations for enforcement by the Wage and Hour Division, pertain to
the employment of any H-2A worker and any other worker employed in
corresponding employment by an H-2A employer. Such enforcement includes
those work contract provisions as defined in Sec. 501.10(d). The work
contract enforced includes the employment benefits which must be stated
in the job offer, as prescribed in 20 CFR 655.102.
Sec. 501.16 General.
Whenever the Secretary believes that the H-2A provisions of the INA
or these regulations have been violated such action shall be taken and
such proceedings instituted as deemed appropriate, including (but not
limited to) the following:
(a) Impose denial of labor certification against any person for a
violation of the H-2A obligations of the INA or the regulations. ETA
shall make all determinations regarding the issuance or denial of labor
certification. ESA shall make all determinations regarding the
enforcement functions listed in paragraphs (b) through (d) of this
section.
(b) Institute appropriate administrative proceedings, including the
recovery of unpaid wages, the enforcement of any other contractual
obligations and the assessment of a civil money penalty against any
person for a violation of the H-2A work contract obligations of the Act
or these regulations.
(c) Petition any appropriate District Court of the United States for
temporary or permanent injunctive relief, including the withholding of
unpaid wages, to restrain violation of the H-
[[Page 60]]
2A provisions the Act or these regulations by any person;
(d) Petition any appropriate District Court of the United States for
specific performance of contractual obligations.
Sec. 501.17 Concurrent actions.
The taking of any one of the actions referred to above shall not be
a bar to the concurrent taking of any other action authorized by the H-
2A provisions of the Act and these regulations, or the regulations of 20
CFR part 655.
Sec. 501.18 Representation of the Secretary.
(a) Except as provided in section 518(a) of title 28, United States
Code, relating to litigation before the Supreme Court, the Solicitor of
Labor may appear for and represent the Secretary in any civil litigation
brought under the Act.
(b) The Solicitor of Labor, through the authorized representatives
shall represent the Administrator and the Secretary in all
administrative hearings under the H-2A provisions of the Act and these
regulations.
Sec. 501.19 Civil money penalty assessment.
(a) A civil money penalty may be assessed by the Administrator for
each violation of the work contract or these regulations.
(b) In determining the amount of penalty to be assessed for any
violation of the work contract as provided in the H-2A provisions of the
Act or these regulations the Administrator shall consider the type of
violation committed and other relevant factors. The matters which may be
considered include, but are not limited to, the following:
(1) Previous history of violation, or violations of the H-2A
provisions of the Act and these regulations;
(2) The number of workers affected by the violation or violations;
(3) The gravity of the violation or violations;
(4) Efforts made in good faith to comply with the H-2A provisions of
the Act and these regulations;
(5) Explanation of person charged with the violation or violations;
(6) Commitment to future compliance, taking into account the public
health, interest or safety, and whether the person has previously
violated the H-2A provisions of the Act;
(7) The extent to which the violator achieved a financial gain due
to the violation, or the potential financial loss or potential injury to
the workers.
(c) A civil money penalty for violation of the work contract will
not exceed $1,000 for each violation committed against each worker. A
civil money penalty for discrimination or interference with Wage and
Hour investigative authority will not exceed $1,000 for each such act of
discrimination or interference.
Sec. 501.20 Enforcement of Wage and Hour investigative authority.
Sections 501.5 through 501.7 of this part prescribe the
investigation authority conferred upon the Wage and Hour Division for
the purpose of enforcing the contractual obligations. These sections
indicate the actions which may be taken upon failure to permit or
interference with an investigation. No person shall interfere with any
employee of the Secretary who is exercising or attempting to exercise
this investigative or enforcement authority. As stated in Sec. Sec.
501.5, 501.6 and in 501.19 of this part, a civil money penalty may be
assessed for each failure to permit an investigation or interference
therewith, and other appropriate relief may be sought. In addition Wage
and Hour shall report each such occurrence to ETA and may recommend to
ETA denial of future labor certifications. The taking of any one action
shall not bar the taking of any additional action.
Sec. 501.21 Referral of findings to ETA.
Where Wage-Hour finds violations Wage and Hour shall so notify the
appropriate representative of ETA and shall forward appropriate
information, including investigative information to such representative
for review and consideration.
Sec. 501.22 Civil money penalties--payment and collection.
Where the assessment is directed in a final order by the
Administrator, by an
[[Page 61]]
Administrative Law Judge, or by the Secretary, the amount of the penalty
is immediately due and payable to the U.S. Department of Labor. The
person assessed such penalty shall remit promptly the amount thereof as
finally determined, to the Administrator by certified check or by money
order, made payable to the order of ``Wage and Hour Division, Labor.''
The remittance shall be delivered or mailed to the Wage and Hour
Division Regional Office for the area in which the violations occurred.
Subpart C_Administrative Proceedings
Sec. 501.30 Applicability of procedures and rules.
The procedures and rules contained herein prescribe the
administrative process which will be applied with respect to a
determination to impose an assessment of civil money penalties and which
may be applied to the enforcement of contractual obligations, including
the collection of unpaid wages due as a result of any violation of the
H-2A provisions of the Act or of these regulations. Except with respect
to the imposition of civil money penalties, the Secretary may, in his
discretion, seek enforcement action in Federal court without resort to
any administrative proceedings.
Procedures Relating to Hearing
Sec. 501.31 Written notice of determination required.
Whenever the Administrator determines to assess a civil money
penalty or to proceed administratively to enforce contractual
obligations, including the recovery of unpaid wages, the person against
whom such action is taken shall be notified in writing of such
determination.
Sec. 501.32 Contents of notice.
The notice required by Sec. 501.31 shall:
(a) Set forth the determination of the Administrator including the
amount of any unpaid wages due or contractual obligations required and
the amount of any civil money penalty assessment and the reason or
reasons therefor.
(b) Set forth the right to request a hearing on such determination.
(c) Inform any affected person or persons that in the absence of a
timely request for a hearing, the determination of the Administrator
shall become final and unappealable.
(d) Set forth the time and method for requesting a hearing, and the
procedures relating thereto, as set forth in Sec. 501.33.
Sec. 501.33 Request for hearing.
(a) Any person desiring to request an administrative hearing on a
determination referred to in Sec. 501.32 shall make such request in
writing to the official who issued the determination, at the Wage and
Hour Division address appearing on the determination notice, no later
than thirty (30) days after issuance of the notice referred to in Sec.
501.32.
(b) No particular form is prescribed for any request for hearing
permitted by this part. However, any such request shall:
(1) Be typewritten or legibly written;
(2) Specify the issue or issues stated in the notice of
determination giving rise to such request;
(3) State the specific reason or reasons why the person requesting
the hearing believes such determination is in error;
(4) Be signed by the person making the request or by an authorized
representative of such person; and
(5) Include the address at which such person or authorized
representative desires to receive further communications relating
thereto.
(c) The request for such hearing must be received by the official
who issued the determination, at the Wage and Hour Division address
appearing on the determination notice, within the time set forth in
paragraph (a) of this section. For the affected person's protection, if
the request is by mail, it should be by certified mail.
[52 FR 20527, June 1, 1987, as amended at 71 FR 16665, Apr. 3, 2006]
[[Page 62]]
Rules of Practice
Sec. 501.34 General.
Except as specifically provided in these regulations, the ``Rules of
Practice and Procedure for Administrative Hearings Before the Office of
Administrative Law Judges'' established by the Secretary at 29 CFR part
18 shall apply to administrative proceedings described in this part.
Sec. 501.35 Commencement of proceeding.
Each administrative proceeding permitted under the Act and these
regulations shall be commenced upon receipt of a timely request for
hearing filed in accordance with Sec. 501.33.
Sec. 501.36 Caption of proceeding.
(a) Each administrative proceeding instituted under the Act and
these regulations shall be captioned in the name of the person
requesting such hearing, and shall be styled as follows:
In the Matter of ----, Respondent.
(b) For the purposes of such administrative proceedings the
Administrator shall be identified as plaintiff and the person requesting
such hearing shall be named as respondent.
Referral for Hearing
Sec. 501.37 Referral to Administrative Law Judge.
(a) Upon receipt of a timely request for a hearing filed pursuant to
and in accordance with Sec. 501.33 the Administrator, by the Associate
Solicitor for the Division of Fair Labor Standards or by the Regional
Solicitor for the Region in which the action arose, shall, by Order of
Reference, promptly refer a copy of the notice of administrative
determination complained of, and the original or a duplicate copy of the
request for hearing signed by the person requesting such hearing or by
the authorized representative of such person, to the Chief
Administrative Law Judge, for a determination in an administrative
proceeding as provided herein. The notice of administrative
determination and request for hearing shall be filed of record in the
Office of the Chief Administrative Law Judge and shall, respectively, be
given the effect of a complaint and answer thereto for purposes of the
administrative proceeding, subject to any amendment that may be
permitted under these regulations or 29 CFR part 18.
(b) A copy of the Order of Reference, together with a copy of these
regulations, shall be served by counsel for the Administrator upon the
person requesting the hearing, in the manner provided in 29 CFR 18.3.
Sec. 501.38 Notice of docketing.
Upon receipt of an Order of Reference, the Chief Administrative Law
Judge shall appoint an Administrative Law Judge to hear the case. The
Administrative Law Judge shall promptly notify all interested parties of
the docketing of the matter and shall set the time and place of the
hearing. The date of the hearing shall be not more than 60 days from the
date on which the Order of Reference was filed.
Sec. 501.39 Service upon attorneys for the Department of Labor--number
of copies.
Two copies of all pleadings and other documents required for any
administrative proceeding provided herein shall be served on the
attorneys for the Department of Labor. One copy shall be served on the
Associate Solicitor, Division of Fair Labor Standards, Office of the
Solicitor, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210, and one copy on the Attorney representing the
Department in the proceeding.
Procedures Before Administrative Law Judge
Sec. 501.40 Consent findings and order.
(a) General. At any time after the commencement of a proceeding
under this part, but prior to the reception of evidence in any such
proceeding, a party may move to defer the receipt of any evidence for a
reasonable time to permit negotiation of an agreement containing consent
findings and an order disposing of the whole or any part of the
proceeding. The allowance of such deferment and the duration thereof
shall be at the discretion of the
[[Page 63]]
Administrative Law Judge, after consideration of the nature of the
proceeding, the requirements of the public interest, the representations
of the parties, and the probability of an agreement being reached which
will result in a just disposition of the issues involved.
(b) Content. Any agreement containing consent findings and an order
disposing of a proceeding or any part thereof shall also provide:
(1) That the order shall have the same force and effect as an order
made after full hearing;
(2) That the entire record on which any order may be based shall
consist solely of the notice of administrative determination (or amended
notice, if one is filed), and the agreement;
(3) A waiver of any further procedural steps before the
Administrative Law Judge; and
(4) A waiver of any right to challenge or contest the validity of
the findings and order entered into in accordance with the agreement.
(c) Submission. On or before the expiration of the time granted for
negotiations, the parties or their authorized representatives or their
counsel may:
(1) Submit the proposed agreement for consideration by the
Administrative Law Judge; or
(2) Inform the Administrative Law Judge that agreement cannot be
reached.
(d) Disposition. In the event an agreement containing consent
findings and an order is submitted within the time allowed therefor, the
Administrative Law Judge, within thirty (30) days thereafter, shall, if
satisfied with its form and substance, accept such agreement by issuing
a decision based upon the agreed findings.
Post-Hearing Procedures
Sec. 501.41 Decision and order of Administrative Law Judge.
(a) The Administrative Law Judge shall prepare, within 60 days after
completion of the hearing and closing of the record, a decision on the
issues referred by the Administrator.
(b) The decision of the Administrative Law Judge shall include a
statement of findings and conclusions, with reasons and basis therefor,
upon each material issue presented on the record. The decision shall
also include an appropriate order which may affirm, deny, reverse, or
modify, in whole or in part, the determination of the Administrator. The
reason or reasons for such order shall be stated in the decision.
(c) The decision shall be served on all parties and the Secretary in
person or by certified mail. The decision when served by the
Administrative Law Judge shall constitute the final order of the
Administrator unless the Secretary, as provided for in Sec. 501.42
below determines to review the decision.
Review of Administrative Law Judge's Decision
Sec. 501.42 Procedures for initiating and undertaking review.
(a) A respondent, the Administrator or any other party wishing
review of the decision of an Administrative Law Judge shall, within 30
days of the decision of the Administrative Law Judge, petition the
Secretary to review the decision. Copies of the petition shall be served
on all parties and on the Administrative Law Judge. If the Secretary
does not issue a notice accepting a petition for review within 30 days
after receipt of a timely filing of the petition, or within 30 days of
the date of the decision if no petition has been received, the decision
of the Administrative Law Judge shall be deemed the final agency action.
(b) Whenever the Secretary either on the Secretary's own motion or
by acceptance of a party's petition, determines to review the decision
of an Administrative Law Judge, a notice of the same shall be served
upon the Administrative Law Judge and upon all parties to the proceeding
in person or by certified mail.
Sec. 501.43 Responsibility of the Office of Administrative Law Judges.
Upon receipt of the Secretary's Notice pursuant to Sec. 501.42 of
these regulations, the Office of Administrative Law Judges shall,
promptly forward a copy of the complete hearing record to the Secretary.
[[Page 64]]
Sec. 501.44 Additional information, if required.
Where the Secretary has determined to review such decision and
order, the Secretary shall notify each party of:
(a) The issue or issues raised;
(b) The form in which submission shall be made (i.e., briefs, oral
argument, etc.); and the time within which such presentation shall be
submitted.
Sec. 501.45 Final decision of the Secretary.
The Secretary's final decision shall be issued within 90 days from
the notice granting the petition and served upon all parties and the
administrative law judge, in person or by certified mail.
Record
Sec. 501.46 Retention of official record.
The official record of every completed administrative hearing
provided by these regulations shall be maintained and filed under the
custody and control of the Chief Administrative Law Judge.
Sec. 501.47 Certification.
Upon receipt of a complaint seeking review of a decision issued
pursuant to this part filed in a U.S. District Court, after the
administrative remedies have been exhausted, the Chief Administrative
Law Judge shall promptly index, certify and file with the appropriate
U.S. District Court, a full, true, and correct copy of the entire
record, including the transcript of proceedings.
PART 504_ATTESTATIONS BY FACILITIES USING NONIMMIGRANT ALIENS AS
REGISTERED NURSES--Table of Contents
Authority: 8 U.S.C. 1101(a)(15)(H)(i)(a) and 1182(m); sec. 3(c)(1),
Pub. L. 101-238, 103 Stat. 2099, 2103; and sec. 341 (a) and (b), Pub. L.
103-182, 107 Stat. 2057.
Source: 61 FR 51014, Sept. 30, 1996, unless otherwise noted.
Sec. 504.1 Cross-reference.
Regulations governing labor condition attestations by facilities
using nonimmigrant aliens as registered nurses are found at 20 CFR part
655, subparts D and E.
PART 505_LABOR STANDARDS ON PROJECTS OR PRODUCTIONS ASSISTED BY GRANTS
FROM THE NATIONAL ENDOWMENTS FOR THE ARTS AND HUMANITIES--Table of Contents
Sec.
505.1 Purpose and scope.
505.2 Definitions.
505.3 Prevailing minimum compensation.
505.4 Receipt of grant funds.
505.5 Adequate assurances.
505.6 Safety and health standards.
505.7 Failure to comply.
Authority: Sec. 5(j), Pub. L. 89-209, 79 Stat. 848 (20 U.S.C.
954(i)); sec. 7(g), Pub. L. 94-462, 90 Stat. 1971, as amended by sec.
107(4), Pub. L. 99-194, 99 Stat. 1337 (20 U.S.C. 956(g)); Secretary's
Order 9-83 (48 FR 35736) and Secretary's Order 6-84 (49 FR 32473).
Source: 53 FR 23541, June 22, 1988, unless otherwise noted.
Sec. 505.1 Purpose and scope.
(a) The regulations contained in this part set forth the procedures
which are deemed necessary and appropriate to carry out the provisions
of section 5(i) and section 7(g) of the National Foundation on the Arts
and Humanities Act of 1965, as amended, 20 U.S.C. 954(i), 20 U.S.C.
956(g). As a condition to the receipt of any grant, the grantees must
give adequate assurances that all professional performers and related or
supporting professional personnel employed on projects or productions
assisted by grants from the National Endowment for the Arts and the
National Endowment for the Humanities shall receive not less than the
prevailing minimum compensation as determined by the Secretary of Labor.
(b) Regulations and procedures relating to wages on construction
projects as provided in section 5(j) and section 7(j) of the National
Foundation on the Arts and Humanities Act of 1965, as amended, may be
found in parts 3 and 5 of this title.
(c) Standards of overtime compensation for laborers or mechanics may
be found in the Contract Work Hours and Safety Standards Act, 76 Stat.
357, 40 U.S.C. 327 et seq. and part 5 of this title.
[[Page 65]]
Sec. 505.2 Definitions.
(a) The term Act means the National Foundation on the Arts and the
Humanities Act of 1965, as amended, 79 Stat 848, as amended, 20 U.S.C.
951 et seq.
(b) The term Secretary means the Secretary of Labor.
(c) The term Administrator means the Administrator of the Wage and
Hour Division, Employment Standards Administration, U.S. Department of
Labor, or authorized representative, to whom is assigned the performance
of functions of the Secretary pertaining to wages under the National
Foundation on the Arts and the Humanities Act of 1965, as amended.
(d) The term Assistant Secretary means the Assistant Secretary for
Occupational Safety and Health, U.S. Department of Labor, or authorized
representative, to whom is assigned the performance of functions of the
Secretary pertaining to safety and health under the National Foundation
on the Arts and the Humanities Act of 1965, as amended.
(e) Professional in the phrase professional performer and related or
supporting professional personnel shall include all those who work for
compensation on a project or production which is assisted by a grant
from the National Endowment for the Arts or the National Endowment for
the Humanities regardless of whether paid out of grant funds. It shall
not include those whose status is amateur because their engagement for
performance or supporting work contemplates no compensation.
Compensation does not include reimbursement of expenses (i.e., meals,
costumes, make-up etc.). The words related or supporting . . . personnel
in the same phrase shall include all those whose work is related to the
particular project or production such as musicians, stage hands, scenery
designers, technicians, electricians and moving picture machine
operators, as distinguished from those who operate a place for receiving
an audience without reference to the particular project or production
being exhibited, such as ushers, janitors, and those who sell and
collect tickets. The phrase does not include laborers and mechanics
employed by contractors or subcontractors on construction projects,
whose compensation is regulated under section 5(j) and section 7(j) of
the Act. The phrase professional performers and related or supporting
professional personnel shall not include persons employed as regular
faculty or staff of an educational institution primarily performing
duties commonly associated with the teaching profession. It shall
include persons employed by educational institutions primarily to engage
in activities customarily performed by performing artists or by those
who assist in the presentation of performances assisted by grants from
the National Endowment for the Arts or the National Endowment for the
Humanities.
Sec. 505.3 Prevailing minimum compensation.
(a)(1) In the absence of an alternative determination made by the
Administrator under paragraph (b) of this section, and except as
provided in paragraph (a)(2) of this section, the prevailing minimum
compensation required to be paid under the Act to the various
professional performers and related or supporting professional personnel
employed on projects or productions assisted by grants from the National
Endowment for the Arts and the National Endowment for the Humanities
shall be the compensation (including fringe benefits) contained in
collective bargaining agreements negotiated by the following national or
international labor organizations or their local affiliates:
Actors' Equity Association.
Screen Actors Guild, Inc.
Screen Extras Guild, Inc.
American Guild of Musical Artists, Inc.
International Alliance of Theatrical Stage Employees and Moving Picture
Machine Operators.
American Federation of Musicians.
National Association of Broadcast Employees and Technicians.
American Federation of Television and Radio Artists.
International Brotherhood of Electrical Workers.
American Guild of Variety Artists.
Writers Guild.
(2) Professional performers and related or supporting professional
personnel who are to perform activities
[[Page 66]]
which do not come within the jurisdiction of any collective bargaining
agreement negotiated by the labor organizations named in paragraph
(a)(1) of this section shall be paid minimum compensation as determined
by agreement of the grant applicant or grantee and the personnel who
will perform such activities or their representatives. Evidence of the
agreement reached by the parties shall be submitted by the grant
applicant to the grant agency, together with evidence of the prevailing
minimum compensation for similar activities. If the parties do not agree
on the minimum compensation to be paid to such personnel, the matter
shall be referred to the Administrator of the Wage and Hour Division for
final determination.
(b)(1) Interested parties, including grant applicants, grantees,
professional performers or related or supporting professional personnel
and their representatives, may at any time submit to the Administrator a
request for a determination of prevailing minimum compensation. The
Administrator will make a determination concerning each such request in
accordance with paragraph (b)(4) of this section.
(2) Any request for a determination of prevailing minimum
compensation shall include or be accompanied by information as to the
locality or localities, the class or classes of professional performers
or related or supporting professional personnel for the project or
production in question, the names and addresses (to the extent known) of
interested parties, and all available information relating to prevailing
minimum compensation currently being paid to such persons or to persons
employed in similar activities. No particular form is prescribed for
submission of information under this section.
(3) If the information specified in paragraph (b)(2) of this section
is not submitted with a request for an alternative determination of
prevailing minimum compensation or is insufficient to permit a
determination, the Administrator may deny the request or request
additional information, at the Administrator's discretion. Pertinent
information from any source may be considered by the Administrator in
connection with any request.
(4) The Administrator will respond to a request for determination
under this section within 30 days of receipt, by issuing a determination
of alternative prevailing minimum compensation or denying the request or
advising that additional time is necessary for a decision. If the
Administrator determines from a preponderance of all relevant evidence
obtained in connection with the request that the compensation provided
for in the agreements negotiated by the labor organizations set forth in
paragraph (a) of this section does not prevail for any professional
performer or related or supporting professional personnel employed on
similar activities in the locality, the Administrator will issue a
determination of the prevailing minimum compensation required to be paid
under the Act to such persons. If the Administrator finds that the
compensation provided for in the agreements negotiated by the labor
organizations set forth in paragraph (a) of this section does prevail
for the professional performers or related or supporting professional
personnel in question, the requesting party will be so notified.
(c) All professional performers and related or supporting
professional personnel (other than laborers or mechanics with respect to
whom labor standards are prescribed in section 5(j) and 7(j) of the Act)
employed on projects or productions which are financed in whole or in
part under section 5 or section 7 of the Act will be paid, without
subsequent deduction or rebate on any account, not less than the
prevailing minimum compensation determined in accordance with paragraph
(a) of this section, unless an alternative determination is made under
paragraph (b) of this section. Pending the decision of the Administrator
on a request for determination under paragraph (b) of this section, the
grantee may be required to set aside in a separate escrow account
sufficient funds to satisfy the difference between the compensation
(including fringe benefits) actually paid to the employee(s) in
question, and the
[[Page 67]]
compensation (including fringe benefits) required under the applicable
collective bargaining agreement negotiated by the labor organization
named in paragraph (a) of this section, or furnish a bond with a surety
or sureties satisfactory to the Administrator for the protection of the
compensation of the affected employees.
Sec. 505.4 Receipt of grant funds.
(a) The grantee shall not receive funds authorized by section 5 or
section 7 of the Act until adequate initial assurances have been filed
with the Chairperson of the National Endowment for the Arts or the
Chairperson of the National Endowment for the Humanities, pursuant to
sections 5(i) (1) and (2) and sections 7(g) (1) and (2) of the Act as
provided in Sec. 505.5(a), that all professional performers and related
or supporting professional personnel will be paid not less than the
prevailing minimum compensation and that the safety and health
requirements will be complied with. Neither shall the grantee receive
any such funds if and after the Chairperson of the National Endowment
for the Arts or Chairperson of the National Endowment for the Humanities
is advised by the Secretary that continuing assurances as provided in
Sec. 505.5(b) are inadequate or that labor standards contemplated by
sections 5(i) (1) and (2) or sections 7(g) (1) and (2) of the Act have
not been observed.
(b) In order to facilitate such assurances so that the grantee may
receive the grant funds promptly, the Chairpersons of the National
Endowment for the Arts and the National Endowment for the Humanities
will transmit with the grant letter, to each grantee of a grant that
will provide assistance to projects or productions employing
professional performers or related or supporting professional personnel
under section 5 or section 7 of the Act, a copy of these regulations
together with two copies of the assurance form (Form No. ESA-38). The
Chairperson will advise the grantee that before the grant may be
received, the grantee must give assurances that all professional
performers and related or supporting professional personnel (other than
laborers or mechanics with respect to whom labor standards are
prescribed in section 5(j) and section 7(j) of the Act), will be paid,
without subsequent deduction or rebate on any account not less than the
minimum compensation determined in accordance with Sec. 505.3 (a) or
(b) and that the safety and health requirements under Sec. 505.6 will
be met. The Chairpersons will maintain on file in Washington, DC, for a
period of three (3) years and make available upon request of the
Secretary the original signed Form ESA-38 and a copy of the grant letter
together with any supplementary documents needed to give a description
of the project or production to be financed in whole or in part under
the grant.
Sec. 505.5 Adequate assurances.
(a) Initial assurances. The grantee shall give adequate initial
assurances that not less than the prevailing minimum compensation
determined in accordance with Sec. 505.3 will be paid to all
professional performers and related or supporting professional
personnel, and that no part of the project or production will be
performed under working conditions which are unsanitary or hazardous or
dangerous to the health and safety of the employees, by executing and
filing with the Chairperson of the National Endowment for the Arts or
the Chairperson of the National Endowment for the Humanities, as
appropriate, Form ESA-38.
(b) Continuing assurances. (1) The grantee shall maintain and
preserve sufficient records as an assurance of compliance with section
5(i) (1) and (2) and section 7(g) (1) and (2) of the Act and shall make
such reports therefrom to the Secretary as necessary or appropriate to
assure the adequacy of the assurances given. Such records shall be kept
for a period of three (3) years after the end of the grant period to
which they pertain. These records shall include the following
information relating to each performer and related or supporting
professional personnel to whom a prevailing minimum compensation
determination applies pursuant to Sec. 505.3. In addition the record
required in paragraph (b)(1)(vii) of this section shall be kept for all
employees engaged in the project or production assisted by the grant.
[[Page 68]]
(i) Name.
(ii) Home address.
(iii) Occupation.
(iv) Basic unit of compensation (such as the amount of a weekly or
monthly salary, talent or performance fee, hourly rate or other basis on
which compensation is computed), including fringe benefits or amounts
paid in lieu thereof.
(v) Work performed for each pay period expressed in terms of the
total units of compensation fully and partially completed.
(vi) Total compensation paid each pay period, deductions made, and
date of payment, including amounts paid for fringe benefits and the
person to whom they were paid, and
(vii) Brief description of any injury incurred while performing
under the grant and the dates and duration of disability.
(2) The grantee shall permit the Administrator and the Assistant
Secretary or their representatives to investigate and gather data
regarding the wages, hours, safety, health, and other conditions and
practices of employment related to the project or production, and to
enter and inspect such project or production and such records (and make
such transcriptions thereof), interview such employees during normal
working hours, and investigate such facts, conditions, practices, or
matters as may be deemed necessary or appropriate to determine whether
the grantee has violated the labor standards contemplated by section
5(i) and section 7(g) of the Act.
(c) Determination of adequacy. The Administrator and Assistant
Secretary shall determine the adequacy of assurances given pursuant to
paragraphs (a) and (b) of this section within each of their respective
areas of responsibilities, and may revise any such determination at any
time.
(The requirements in paragraph (b) were approved by the Office of
Management and Budget under control number 1215-0017)
[53 FR 23541, June 22, 1988; 53 FR 24171, June 27, 1988]
Sec. 505.6 Safety and health standards.
(a) Standards. Section 5(i)(2) and section 7(g)(2) of the Act
provide that ``no part of any project or production which is financed in
whole or in part under this section will be performed or engaged in
under working conditions which are unsanitary or hazardous or dangerous
to the health and safety of the employees engaged in such project or
production. Compliance with the safety and sanitary laws in the State in
which the performance or part thereof is to take place shall be prima
facie evidence of compliance. * * *'' The applicable safety and health
standards shall be those set forth in 29 CFR parts 1910 and 1926,
including matters incorporated by reference therein. Evidence of
compliance with State laws relating to health and sanitation will be
considered prime facie evidence of compliance with the safety and health
requirements of the Act, and it shall be sufficient unless rebutted or
overcome by a preponderance of evidence of a failure to comply with any
applicable safety and health standards set forth in 29 CFR parts 1910
and 1926, including matters incorporated by reference therein.
(b) Variances. (1) Variances from standards applied under paragraph
(a) of this section may be granted under the same circumstances in which
variances may be granted under section 6(b)(6)(A) or 6(d) of the
Williams-Steiger Occupational Safety and Health Act of 1970 (29 U.S.C.
655). The procedures for the granting of variances and for related
relief are those published in part 1905 of this title.
(2) Any requests for variances shall also be considered requests for
variances under the Williams-Steiger Occupational Safety and Health Act
of 1970, and any variance from a standard applied under paragraph (a) of
this section and in part 1910 of this title shall be deemed a variance
from the standards under both the National Foundation on the Arts and
Humanities Act of 1965 and the Williams-Steiger Occupational Safety and
Health Act of 1970.
Sec. 505.7 Failure to comply.
The Secretary's representatives shall maintain a list of those
grantees who are considered to be responsible for instances of failure
to comply with the obligation of the grantees specified in section 5(i)
(1) and (2) and section 7(g)
[[Page 69]]
(1) and (2) of the Act, which are considered to have been willful or of
such nature as to cast doubt on the reliability of formal assurances
subsequently given and there shall be maintained a similar list where
adjustment of the violations satisfactory to the Secretary was not
properly made. Assurances from persons or organizations placed on either
such list or any organization in which they have a substantial interest
shall be considered inadequate for purposes of receiving further grants
for a period not to exceed three (3) years from the date of notification
by the Secretary that they have been placed on the lists unless, by
appropriate application to the Secretary, they demonstrate a current
responsibility to comply with section 5(i) (1) and (2) and section 7(g)
(1) and (2) of the Act, and demonstrate that correction of the
violations has been made.
PART 506_ATTESTATIONS BY EMPLOYERS USING ALIEN CREWMEMBERS FOR LONGSHORE
ACTIVITIES IN U.S. PORTS--Table of Contents
Authority: 8 U.S.C. 1288 (c) and (d).
Source: 61 FR 51014, Sept. 30, 1996, unless otherwise noted.
Sec. 506.1 Cross-reference.
Regulations governing attestations by employers using alien
crewmembers for longshore activities in U.S. ports are found at 20 CFR
part 655, subparts F and G.
PART 507_LABOR CONDITION APPLICATIONS AND REQUIREMENTS FOR EMPLOYERS USING
NONIMMIGRANTS ON H-1B SPECIALTY VISAS IN SPECIALTY OCCUPATIONS AND AS FASHION
MODELS--Table of Contents
Authority: 8 U.S.C. 1101(a)(15)(H)(i)(b), 1182(n), and 1184; 29
U.S.C. 49 et seq.; Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182
note); and sec. 341 (a) and (b), Pub. L. 103-182, 107 Stat. 2057.
Source: 61 FR 51014, Sept. 30, 1996, unless otherwise noted.
Sec. 507.1 Cross-reference.
Regulations governing labor condition applications requirements for
employers using nonimmigrants on H-1B specialty visas in specialty
occupations and as fashion models are found at 20 CFR part 655, subparts
H and I.
PART 508_ATTESTATIONS FILED BY EMPLOYERS UTILIZING F-1 STUDENTS FOR
OFF-CAMPUS WORK--Table of Contents
Authority: 29 U.S.C. 49 et seq.; and sec. 221(a), Pub. L. 101-649,
104 Stat. 4978, 5027 (8 U.S.C. 1184 note).
Source: 61 FR 51014, Sept. 30, 1996, unless otherwise noted.
Sec. 508.1 Cross-reference.
Regulations governing attestations by employers using F-1 students
in off-campus work are found at 20 CFR part 655, subparts J and K.
PART 510_IMPLEMENTATION OF THE MINIMUM WAGE PROVISIONS OF THE 1989
AMENDMENTS TO THE FAIR LABOR STANDARDS ACT IN PUERTO RICO--Table of Contents
Subpart A_General
Sec.
510.1 Summary.
510.2 Purpose and scope of regulations.
510.3 Definitions.
Subpart B_Schedule of Minimum Wage Rates Applicable in Puerto Rico
510.10 Table of Wage Rates and Effective dates.
Subpart C_Classification of Industries
510.20 Wage surveys in Puerto Rico.
510.21 SIC codes.
510.22 Industries eligible for minimum wage phase-in.
510.23 Agricultural activities eligible for minimum wage phase-in.
510.24 Governmental entities eligible for minimum wage phase-in.
510.25 Traditional functions of government.
Appendix A to Part 510--Manufacturing Industries Eligible for Minimum
Wage Phase-in
Appendix B to Part 510--Nonmanufacturing Industries Eligible for Minimum
Wage Phase-in
[[Page 70]]
Appendix C to Part 510--Government Corporations Eligible for Minimum
Wage Phase-in
Appendix D to Part 510--Municipalities Eligible for Minimum Wage Phase-
in
Authority: Sec. 4, Pub. L. 101-157, 103 Stat. 938; 29 U.S.C. 201 et
seq.
Source: 55 FR 12120, Mar. 30, 1990, unless otherwise noted.
Subpart A_General
Sec. 510.1 Summary.
(a) The Fair Labor Standards Amendments of 1989 (Pub. L. 101-157)
were enacted into law on November 17, 1989. Among other provisions,
these amendments to the Fair Labor Standards Act (FLSA) increased the
minimum wage in section 6(a)(1) of the Act to $3.80 an hour effective
April 1, 1990, and to $4.25 an hour effective April 1, 1991. With
respect to certain industries and governmental entities in the
Commonwealth of Puerto Rico, the Amendments provided that these
increases would be phased in over extended periods of time.
(b) Section 6(c) of the FLSA provides for four separate categories
or tiers for implementing the minimum wage rate increases in Puerto
Rico.
(1) For Tier 1, which includes employees of the United States,
employees of hotels, motels, or restaurants, retail or service
establishments that employ such employees primarily in connection with
the preparation or offering of food or beverages for human consumption,
and industries in which the average hourly wage is greater than $4.64,
there shall be no phase-in. The wage rates and effective dates shall be
those specified in section 6(a)(1) of FLSA, i.e., $3.80 per hour
beginning April 1, 1990 and $4.25 per hour beginning April 1, 1991.
(2) For Tier 2, which includes industries in which the average
hourly wage is not less than $4.00 but not more than $4.64, the
increases in the minimum wage rates shall be phased-in in five annual
increments (rounded to the nearest 5 cents) beginning April 1, 1990, and
ending April 1, 1994.
(3) For Tier 3, which includes industries in which the average
hourly wage is less than $4.00, the increases in the minimum wage shall
be phased-in in six annual increments (rounded to the nearest 5 cents)
beginning April 1, 1990, and ending April 1, 1995.
(4) For Tier 4, which includes certain employees of the Commonwealth
of Puerto Rico, municipalities, and other governmental entities of the
Commonwealth in which the average hourly wage is less than $4.00, the
increases shall be phased-in in seven annual increments (rounded to the
nearest 5 cents) beginning April 1, 1990 and ending April 1, 1996.
(c) The Amendments also eliminated reference to Puerto Rico in those
sections of FLSA relating to the establishment and conduct of special
industry committees which recommend minimum wage rates in certain
territories. These sections now apply only to American Samoa. (Industry
committee regulations pertaining to American Samoa are found in 29 CFR
parts 511 and 697).
Sec. 510.2 Purpose and scope of regulations.
(a) The purpose of these regulations is to implement the 1989
Amendments to the FLSA with respect to minimum wage increases in Puerto
Rico. These regulations establish the applicable wage rates and
effective dates in the four statutory tiers and categorize industries
and governmental entities in Puerto Rico in those tiers according to
average hourly wage rates. In addition, these regulations explain the
methodology used to determine appropriate tiers, including the use of
standard industrial classification (SIC) codes to categorize industries.
(b) Subpart A of this part summarizes the provisions of the
Amendments as applicable to Puerto Rico and defines the terms used
herein. Subpart B of this part states the specific minimum wage rates
for each tier and the effective dates of those rates. Subpart C of this
part explains how industry and governmental categories were determined,
the general methodology used to conduct the surveys which provided the
data used to determine average hourly wage rates, and special issues in
the classification of governmental entities. Appendix A of this
[[Page 71]]
part contains a listing of manufacturing industries by Standard
Industrial Classification (SIC) code and indicates the tier to which
each industry is subject. Appendix B of this part contains a listing of
nonmanufacturing industries by SIC code and indicates the tier to which
each industry is subject. Appendix C of this part contains a listing of
government corporations and indicates the tier to which each such
corporation is subject. Appendix D of this part contains a listing of
municipalities and indicates the tier to which each municipality is
subject.
(c) Nothing contained in this part should be construed as precluding
the Puerto Rico Minimum Wage Board, which has been granted authority to
promulgate minimum wage rates above the Federal statutory minimum, from
providing for increases in any industry which would exceed the rates
provided for in these regulations or in section 6(a)(1) of the Act.
Sec. 510.3 Definitions.
(a) Act or FLSA means the Fair Labor Standards Act of 1938, as
amended (29 U.S.C. 201, et seq.).
(b) Amendments or 1989 Amendments means the Fair Labor Standards
Amendments of 1989 (Pub. L. 101-157).
(c) Secretary means the Secretary of Labor, or a duly authorized
representative of the Secretary.
(d) Administrator means the Administrator of the Wage and Hour
Division of the Employment Standards Administration, U.S. Department of
Labor, or a duly authorized representative of the Administrator.
(e) Department means the U.S. Department of Labor.
(f) Tier means one of the four categories established for an
extended phase-in of the statutory increases in the minimum wage under
section 6(c) of the Act as amended.
(g) Standard Industrial Classification (SIC) refers to the
classifications established in the Standard Industrial Classification
Manual, 1987, published by the Office of Management and Budget,
Executive Office of the President.
Subpart B_Schedule of Minimum Wage Rates Applicable in Puerto Rico
Sec. 510.10 Table of wage rates and effective dates.
(a) The following table provides effective dates of minimum wage
increases for the four statutory tiers. Appendices A and B to these
regulations contain listings of manufacturing and non-manufacturing
industries in Puerto Rico by SIC code, and indicate which tier is
applicable. Appendices C and D contain listings of government
corporations and municipalities and indicate which tier is applicable.
Effective Dates
----------------------------------------------------------------------------------------------------------------
Tier 4/1/90 4/1/91 4/1/92 4/1/93 4/1/94 4/1/95 4/1/96
----------------------------------------------------------------------------------------------------------------
One................................ $3.80 $4.25 $4.25 $4.25 $4.25 $4.25 $4.25
Two................................ 3.55 3.70 3.90 4.05 4.25 4.25 4.25
Three.............................. 3.50 3.65 3.80 3.95 4.10 4.25 4.25
Four............................... 3.50 3.60 3.75 3.85 4.00 4.10 4.25
----------------------------------------------------------------------------------------------------------------
(b) Tier 1 applies to employees of the United States, employees of
hotels, motels, or restaurants, retail or service establishments that
employ such employees primarily in connection with the preparation or
offering of food or beverages for human consumption, and industries in
which the average hourly wage is greater than $4.64.
(c) Tier 2 applies to industries in which the average hourly wage is
not less than $4.00 but not more than $4.64.
(d) Tier 3 applies to industries in which the average hourly wage is
less than $4.00.
(e) Tier 4 applies to certain employees of the Commonwealth of
Puerto Rico, municipalities, and other governmental entities of the
Commonwealth in which the average hourly wage is less than $4.00.
[[Page 72]]
Subpart C_Classification of Industries
Sec. 510.20 Wage surveys in Puerto Rico.
(a) The legislative history to the 1989 Amendments (Conference
Report 101-47 on H.R. 2, May 8, 1989) stated that for any industry to
qualify for an extended minimum wage phase-in, the government of Puerto
Rico would be required to furnish official survey data substantiating
that an industry's average hourly wage is below either the $4.65 or
$4.00 threshold level. Such data were to be compiled and submitted for
review to the Department.
(b) Manufacturing industries. For purposes of implementing section
6(c) of the Act, as amended, Puerto Rico has submitted its Census of
Manufacturing Industries. The Bureau of Labor Statistics of Puerto Rico
regularly gathers data from manufacturing establishments regarding
employment, hours and earnings. The data include hourly earnings for
production and related workers and are generally specific to the four-
digit SIC code level.
(c) Non-manufacturing industries. The Bureau of Labor Statistics of
Puerto Rico designed and executed a survey to supplement data regularly
gathered for the U.S. Bureau of Labor Statistics (i.e., that included in
the payroll establishment survey published in Employment and Earnings).
The supplemental survey was carried out to determine average hourly
earnings for production workers or non-supervisory employees in the
private non-agricultural, non-manufacturing sector. Employment and
payroll information was collected for the payroll period which included
April 12, 1989. The data provided to the Department were generally
specific to the four-digit SIC code level.
(d) Agriculture. At the request of the Department, the Bureau of
Labor Statistics of Puerto Rico conducted a survey of wages paid to
agricultural workers which included employment and earnings from at
least a specified number of sugarcane farms, coffee farms, ornamental
farms, vegetable farms, and other farms, following standard statistical
random sampling techniques. The survey included information on earnings,
employment, and hourly wage rates paid to workers for the workweek
including March 11 through March 17, 1990. In addition, applicable
collective bargaining agreements were reviewed for sugarcane farms.
(e) Commonwealth government. In the case of the Commonwealth
Government of Puerto Rico, a census of hourly earnings was undertaken of
all government departments, commissions and other agencies. A separate
survey was conducted of government corporations. Managers, officials and
employees in positions which require a college degree were excluded from
the surveys.
(f) Municipalities. In the case of the municipalities of Puerto
Rico, a census of hourly earnings was conducted. Managers, officials and
employees in positions which require a college degree were excluded from
the survey.
[55 FR 12120, Mar. 30, 1990, as amended at 55 FR 53247, Dec. 27, 1990]
Sec. 510.21 SIC codes.
(a) The Conference Report specifically cites Puerto Rico's annual
Census of Manufacturing Industries as a source of average hourly wage
data by industry. Industries in that census are organized by Standard
Industrial Classification (SIC), the statistical classification system
used for a variety of governmental and statistical purposes. With
respect to non-manufacturing industries, or other industries not
included in the Census of Manufacturing, the Conference Report stated
that data ``should be at a level of specificity comparable to the four
digit Standard Industry Code (SIC) code level.''
(b) The Standard Industrial Classification (SIC) codes listed in
appendix A and B herein are designated in accordance with the Standard
Industrial Classification (SIC) Manual, 1987, published by the Executive
Office of the President, Office of Management and Budget. This
incorporation by reference was approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be obtained from the National Technical Information Service, 5285
Port Royal Road, Springfield, VA 22161. Copies may be inspected at all
[[Page 73]]
federal depository libraries in the Commonwealth of Puerto Rico; at the
district office of the Wage and Hour Division, U.S. Department of Labor,
New San Juan Office Building, 159 Chardon St., room 102, Hato Rey, PR
00918; at the Commonwealth of Puerto Rico Department of Labor and Human
Resources, Prudencio Rivera Building, Munoz Rivera Avenue 505, Mato Rey,
PR 00918; or at the National Archives and Records Administration (NARA).
For information on the availability of this material at NARA, call 202-
741-6030, or go to: http://www.archives.gov/federal--register/code--of--
federal--regulations/ibr--locations.html. Establishments are classified
according to their primary activity. The classification structure
classifies industries by:
(1) Two-digit major group,
(2) Three digit industry group, or
(3) Four-digit industry code, according to the level of industrial
detail which may be required.
Each operating establishment is assigned an industry code on the basis
of its primary activity, which is determined by its principal product or
group of products produced or distributed, or services rendered.
[55 FR 12120, Mar. 30, 1990; 55 FR 12778, Apr. 5, 1990, as amended at 69
FR 18803, Apr. 9, 2004]
Sec. 510.22 Industries eligible for minimum wage phase-in.
(a) Appendix A contains a listing of all industries included in the
Census of Manufacturing. Appendix B contains a listing of non-
manufacturing industries. These listing are organized by SIC numbers,
presented by:
(1) Major group (two-digit classification),
(2) Industry group (three-digit classification), and (3) industry
(four-digit classification). In each instance the phase-in tier which
applies to that industry or group is indicated.
(b) Employers are required to utilize the most detailed
classification which applies to their industry. Where an employer's
four-digit SIC code is listed, the tier applicable to that code
determines the minimum wage phase-in schedule for that employer. (See
Sec. 510.10, above).
(c) Where an industry is not listed by four-digit SIC code,
employers shall utilize the three-digit which applies to their industry.
If a three-digit code is not listed, employers shall use the applicable
two-digit code.
[55 FR 12120, Mar. 30, 1990; 55 FR 12778, Apr. 5, 1990]
Sec. 510.23 Agricultural activities eligible for minimum wage phase-in.
Agriculture activities eligible for an extended phase-in of the
minimum wage in Major groups 01, 02, and 07 have been incorporated into
Appendix B--Nonmanufacturing Industries Eligible for Minimum Wage Phase-
In. Applicable wage rates are effective retroactive to April 1, 1990.
Employers in the sugarcane farming industry (SIC Number 0133) who are
subject to Tier 3 wage rates but who have paid wage rates based on Tier
2 wage rates may not take any action to recoup such payments where those
actions would have the effect of reducing the wage rate being paid at
the time of such recoupment to below that required under Tier 3.
[55 FR 53247, Dec. 27, 1990]
Sec. 510.24 Governmental entities eligible for minimum wage phase-in.
(a) The Commonwealth government of Puerto Rico has been determined
to be eligible for treatment under Tier 2, on the basis of wage data
supplied to the Department.
(b) Appendix C of this part contains a listing of Commonwealth
government corporations, indicating the phase-in tier which applies.
Entities which do not appear on the list are those for which no wage
data were supplied. These entities are therefore categorized under Tier
1, and are ineligible for an extended phase-in.
(c) Appendix D of the part contains a listing of municipalities,
indicating the phase-in tier which applies. Municipalities categorized
under Tier 1 are those which failed to supply wage data.
(d) Employees of municipalities who have reason to believe that the
municipality by which they are employed has been incorrectly
categorized, e.g., categorized under Tier 3 instead of Tier 2, may no
later than June 1, 1990, file
[[Page 74]]
with the Administrator a petition for review. The petition shall be
accompanied by any information the employee may have to support a
determination that the municipality is incorrectly categorized. In the
event the Administrator determines that a tier other than that listed in
appendix D of this part applies, the affected municipality shall be
liable for retroactive payment of any back wages found to be due.
(e) Certain employees of municipalities or government corporations
in which the average wage is less than $4.00 per hour are eligible to be
paid under Tier 4, rather than Tier 3. Tier 4 applies only to those
employees employed by municipalities or government corporations who are
principally engaged in one or more of the ``traditional'' functions
listed in Sec. 510.24 (a) or (b). All other employees of such entities
must be paid in accordance with Tier 3.
[55 FR 12120, Mar. 30, 1990; 55 FR 12778, Apr. 5, 1990]
Sec. 510.25 Traditional functions of government.
(a) Section 6(c)(4) of the Act, as amended, limits the six-year
phase-in of the statutory minimum wage (``Tier 4'') to those employees
with an average wage of less than $4.00 per hour who were brought under
minimum wage coverage ``pursuant to an amendment made by the Fair Labor
Standards Amendments of 1985.'' The Department has interpreted this
language as referring to section 2(c) of the 1985 FLSA Amendments, which
provided for deferred liability for minimum wage violations (until April
15, 1986) ``with respect to any employee who would not have been covered
under the Secretary's special enforcement policy'' published in 29 CFR
775.2 and 775.4. The latter subsection listed those functions of State
or local government which were determined by the Supreme Court's ruling
in National League of Cities v. Usery, 426 U.S. 833 (1976) (subsequently
overruled by Garcia v. San Antonio Metropolitan Transit Authority, 469
U.S. 528 (1985)) to be integral operations of the governments in areas
of traditional governmental functions. The listed ``traditional''
functions included the following:
(1) Schools.
(2) Hospitals.
(3) Fire prevention.
(4) Police protection.
(5) Sanitation.
(6) Public health.
(7) Parks and recreation.
(8) Libraries.
(9) Museums.
(b) The Supreme Court in National League of Cities clearly did not
limit ``traditional'' functions of government to those set out in
paragraph (a) of this section. The Court included within this concept
all those governmental services which the States and their political
subdivisions have traditionally afforded their citizens, which the
States have regarded as integral parts of their governmental activities,
and which State and local governments are created to provide. The
Department interprets the Court's analysis of ``traditional'' functions
as turning in large part upon whether the States or local governments
had, prior to initial enactment of federal regulatory legislation
applicable to a particular field of service or activity (such as FLSA),
generally established themselves as providers of the services. The
Department therefore views the following government functions as falling
within the ``traditional'' category:
(1) Finance (including Auditor, Budget and Comptroller).
(2) Elections.
(3) Personnel.
(4) Public works.
(5) Office of the Mayor.
(6) Legal Affairs.
(7) Planning.
(8) Waterworks.
(9) Social services.
(10) Street and highway construction and maintenance.
(11) Automobile licensing.
(12) Sewage treatment.
(c) Employees whose primary function falls within one or more of the
activities listed in paragraph (a) or (b) of this section, are therefore
considered to be engaged in ``traditional'' functions of government.
This would include employees who provide support functions for such
activities, such as
[[Page 75]]
clerical, secretarial, supply and janitorial.
(d) No employees of a municipality or government corporation may be
paid in accordance with the Tier 4 phase-in schedule unless the
employee:
(1) Is engaged in one of the specific activities listed in
paragraphs (a) and (b) of this section, and
(2) Is employed by a municipality or government corporation in which
the average wage is less than $4.00 per hour.
Appendix A to Part 510--Manufacturing Industries Eligible for Minimum
Wage Phase-In
This appendix contains a listing of all manufacturing industries for
which data were collected and compiled by the Commonwealth of Puerto
Rico for purposes of implementing the 1989 Amendments to FLSA. This
listing follows the order and classifications used in the SIC Manual,
1987, which is incorporated by reference in these regulations (Sec.
510.21).
The data in this appendix are presented by major industry group
(two-digit classification), industry group number (three-digit
classification), and industry number (four-digit classification). Tiers
will not be listed for industry categories in which there were fewer
than three employers, in conformance with standard procedures used by
the Commonwealth of Puerto Rico in collecting and publishing these data
until such time as Puerto Rico receives appropriate waivers of
confidentiality from all employers in such categories. These categories
are noted with an ``a'' on the following table. In addition, no tier
will be listed where an industry was not included in the original
survey, because it was not in existence, because the industry was too
small to be included, or for other reasons.
Employers who do not find the four-digit classification for their
industry shall refer to the appropriate three-digit classification under
which their establishment falls. If the appropriate three-digit
classification is not listed, employers shall refer to the appropriate
two-digit classification. For example, no tier is listed for industry
number 2034, dried and dehydrated fruits, vegetables, and soup mixes.
Thus, an employer in industry 2034 must use the tier listed for industry
group 203, i.e. Tier 2.
Further, employers who find the appropriate four-digit designation
in this appendix must use that designation and cannot refer to a two- or
three-digit classification. For example, an employer in industry number
2033, canned fruits, vegetables, preserves, jams, and jellies, which has
a Tier 1 designation, cannot use the Tier 2 designation of industry
group 203, canned, frozen, and preserved fruits, vegetables, and food
specialties.
If no four-digit, three-digit, or two-digit classification is listed
for an industry, employees in that group must pay the Tier 1 rates.
Important: In referring to this appendix to determine appropriate
tier designations, please note that certain categories of employees are
subject to treatment under Tier 1 regardless of the average hourly wage
rate for the industry and the tier designation contained herein. These
employees, as listed in the 1989 Amendments, are those employed by:
(a) The United States
(b) An establishment that is a hotel, motel, or restaurant, or
(c) Any other retail or service establishment that employs such
employee in connection with the preparation or offering of food or
beverages for human consumption, either on the premises, or by such
services as catering, banquet, box lunch, or curb or counter service, to
the public, to employees, or to members or guests of clubs.
Please note that these named categories may not correspond exactly
to categories established by the SIC manual.
Manufacturing Industries
------------------------------------------------------------------------
Industry
Major group group Industry Tier Industry
number number
------------------------------------------------------------------------
20........... ........... ........... 1 Food and kindred
products.
201 ........... 2 Meat products.
........... 2011 2 Meat packing plants.
........... 2013 1 Sausages and other
prepared meat
products.
........... 2015 2 Poultry slaughtering
and processing.
202 ........... 1 Dairy products.
........... 2022 a Natural, processed, and
imitation cheese.
........... 2023 1 Dry, condensed, and
evaporated dairy
products.
........... 2024 1 Ice cream and frozen
desserts.
........... 2026 1 Fluid milk.
203 ........... 2 Canned, frozen, and
preserved fruits,
vegetables, and food
specialties.
........... 2032 a Canned specialties.
........... 2033 1 Canned fruits,
vegetables, preserves,
jams, and jellies.
[[Page 76]]
........... 2035 3 Pickled fruits and
vegetables, vegetable
sauces and seasonings,
and salad dressings.
........... 2037 2 Frozen fruits, fruit
juices, and
vegetables.
........... 2038 3 Frozen specialties, not
elsewhere classified.
204 ........... 1 Grain mill products.
........... 2041 a Flour and other grain
mill products.
........... 2043 a Cereal breakfast foods.
........... 2044 1 Rice milling.
........... 2045 1 Prepared flour mixes
and doughs.
........... 2046 1 Wet corn milling.
........... 2048 1 Prepared feeds and feed
ingredients for
animals and fowls,
except dogs and cats.
205 ........... 1 Bakery products.
........... 2051 1 Bread and other bakery
products, except
cookies and crackers.
........... 2052 1 Cookies and crackers.
........... 2053 a Frozen bakery products,
except bread.
206 ........... 1 Sugar and confectionery
products.
........... 2061 1 Cane sugar, except
refining.
........... 2062 a Cane sugar refining.
........... 2064 1 Candy and other
confectionery
products.
........... 2066 3 Chocolate and cocoa
products.
........... 2067 a Chewing gum.
208 ........... 1 Beverages.
........... 2082 1 Malt beverages.
........... 2084 3 Wines, brandy, and
brandy spirits.
........... 2085 1 Distilled and blended
liquors.
........... 2086 1 Bottled and canned soft
drinks and carbonated
waters.
........... 2087 1 Flavoring extracts and
flavoring syrups, not
elsewhere classified.
209 ........... 1 Miscellaneous food
preparations and
kindred products.
........... 2091 1 Canned and cured fish
and seafoods.
........... 2095 2 Roasted coffee.
........... 2096 1 Potato chips, corn
chips, and similar
snacks.
........... 2097 3 Manufactured ice.
........... 2098 a Macaroni, spaghetti,
vermicelli, and
noodles.
........... 2099 2 Food preparations, not
elsewhere classified.
21........... ........... ........... 1 Tobacco products.
211 ........... a Cigarettes.
........... 2111 a Cigarettes.
212 ........... 1 Cigars.
........... 2121 1 Cigars.
213 ........... 1 Chewing and smoking
tobacco and snuff.
........... 2131 1 Chewing and smoking
tobacco and snuff.
214 ........... a Tobacco stemming and
redrying.
........... 2141 a Tobacco stemming and
redrying.
22........... ........... ........... 1 Textile mill products.
221 ........... 1 Broadwoven fabric
mills, cotton.
........... 2211 1 Broadwoven fabric
mills, cotton.
224 ........... 1 Narrow fabric and other
smallwares mills:
cotton, wool, silk,
and manmade fiber.
........... 2241 1 Narrow fabric and other
smallwares mills:
cotton, wool, silk,
and manmade fiber.
225 ........... 2 Knitting mills.
........... 2251 1 Women's full-length and
knee-length hosiery,
except socks.
........... 2253 2 Knit outerwear mills.
........... 2254 3 Knit underwear and
nightwear mills.
226 ........... 1 Dyeing and finishing
textiles, except wool
fabrics and knit
goods.
........... 2261 3 Finishers of broadwoven
fabrics of cotton.
........... 2262 1 Finishers of broadwoven
fabrics of manmade
fiber and silk.
227 ........... 1 Carpets and rugs.
........... 2273 1 Carpets and rugs.
228 ........... 3 Yarn and thread mills.
........... 2281 3 Yarn spinning mills.
23........... ........... ........... 2 Apparel and other
finished products made
from fabrics and
similar materials.
231 ........... 3 Men's and boys' suits,
coats, and overcoats.
........... 2311 3 Men's and boys' suits,
coats, and overcoats.
232 ........... 2 Men's and boys'
furnishings, work
clothing, and allied
garments.
........... 2321 2 Men's and boys' shirts
except work shirts.
........... 2322 1 Men's and boys'
underwear and
nightwear.
........... 2323 2 Men's and boys'
neckwear.
........... 2325 2 Men's and boys'
separate trousers and
slacks.
[[Page 77]]
........... 2326 3 Men's and boys' work
clothing.
........... 2329 3 Men's and boys'
clothing, not
elsewhere classified.
233 ........... 3 Women's, misses', and
juniors' outerwear.
........... 2331 3 Women's, misses', and
juniors' blouses and
shirts.
........... 2335 3 Women's, misses', and
juniors dresses.
........... 2337 3 Women's, misses, and
juniors' suits,
skirts, and coats.
........... 2339 2 Women's, misses', and
juniors' outerwear,
not elsewhere
classified.
234 ........... 2 Women's, misses',
children's, and
infants'
undergarments.
........... 2341 2 Women's, misses',
children's, and
infants' underwear and
nightwear.
........... 2342 2 Brassieres, girdles,
and allied garments.
235 ........... 3 Hats, caps, and
millinery
........... 2353 3 Hats, caps, and
millinery
236 ........... 3 Girls', children's, and
infants' outerwear.
........... 2361 3 Girls', children's, and
infants' dresses,
blouses, and shirts.
........... 2369 3 Girls', children's, and
infants' outerwear,
not elsewhere
classified.
238 ........... 3 Miscellaneous apparel
and accessories.
........... 2385 3 Waterproof outerwear.
........... 2387 3 Apparel belts.
........... 2389 3 Apparel and
accessories, not
elsewhere classified.
239 ........... 3 Miscellaneous
fabricated textile
products.
........... 2391 2 Curtains and draperies.
........... 2392 3 Housefurnishings,
except curtains and
draperies.
........... 2393 3 Textile bags.
........... 2395 2 Pleating, decorative
and novelty stitching,
and tucking for the
trade.
........... 2396 2 Automotive trimmings,
apparel findings, and
related products.
........... 2399 3 Fabricated textile
products, not
elsewhere classified.
24........... ........... ........... 2 Lumber and wood
products, except
furniture.
242 ........... 3 Sawmills and planing
mills.
........... 2421 3 Sawmills and planing
mills, general.
243 ........... 2 Millwork, veneer,
plywood, and
structural wood
members.
........... 2431 2 Millwork.
........... 2434 2 Wood kitchen cabinets.
........... 2435 a Hardwood veneer and
plywood.
244 ........... 3 Wood containers.
........... 2448 3 Wood pallets and skids.
245 ........... 3 Wood buildings and
mobile homes.
........... 2451 3 Mobile homes.
249 ........... 2 Miscellaneous wood
products.
........... 2491 2 Wood preserving.
........... 2499 2 Wood products, not
elsewhere classified.
25........... ........... ........... 2 Furniture and fixtures.
251 ........... 3 Household furniture.
........... 2511 3 Wood household
furniture, except
upholstered.
........... 2512 3 Wood household
furniture,
upholstered.
........... 2514 3 Metal household
furniture.
........... 2515 2 Mattresses,
foundations, and
convertible beds.
........... 2517 3 Wood television, radio,
phonograph, and sewing
machine cabinets.
........... 2519 3 Household furniture,
not elsewhere
classified.
252 ........... 2 Office furniture.
........... 2521 a Wood office furniture.
........... 2522 2 Office furniture,
except wood.
253 ........... 3 Public building and
related furniture.
........... 2531 3 Public building and
related furniture.
254 ........... 1 Partitions, shelving,
lockers, and office
and store fixtures.
........... 2541 2 Wood office and store
fixtures, partitions,
shelving, and lockers.
........... 2542 1 Office and store
fixtures, partitions,
shelving, and lockers,
except wood.
259 ........... 2 Miscellaneous furniture
and fixtures.
........... 2591 3 Drapery hardware and
window blinds and
shades.
........... 2599 a Furniture and fixtures,
not elsewhere
classified.
26........... ........... ........... 1 Paper and allied
products.
261 ........... 1 Pulp mills.
........... 2611 1 Pulp mills.
262 ........... 2 Paper mills.
........... 2621 2 Paper mills.
263 ........... a Paperboard mills.
........... 2631 a Paperboard mills.
265 ........... 1 Paperboard containers
and boxes.
........... 2652 1 Setup paperboard boxes.
........... 2653 1 Corrugated and solid
fiber boxes.
........... 2655 1 Fiber cans, tubes,
drums, and similar
products.
[[Page 78]]
........... 2657 1 Folding paperboard
boxes, including
sanitary.
267 ........... 1 Converted paper and
paperboard products,
except containers and
boxes.
........... 2671 2 Packaging paper and
plastics film, coated
and laminated.
........... 2672 a Coated and laminated
paper, not elsewhere
classified.
........... 2673 2 Plastics, foil, and
coated paper bags.
........... 2674 1 Uncoated paper and
multiwall bags.
........... 2676 1 Sanitary paper
products.
........... 2677 1 Envelopes.
........... 2678 3 Stationery, tablets,
and related products.
........... 2679 a Converted paper and
paperboard products,
not elsewhere
classified.
27........... ........... ........... 1 Printing, publishing,
and allied industries.
271 ........... 1 Newspapers: publishing,
or publishing and
printing.
........... 2711 1 Newspapers: publishing,
or publishing and
printing.
273 ........... a Books.
........... 2731 a Books: publishing, or
publishing and
printing.
........... 2732 3 Book printing.
274 ........... 1 Miscellaneous
publishing.
........... 2741 1 Miscellaneous
publishing.
275 ........... 1 Commercial printing.
........... 2752 1 Commercial printing,
lithographic.
........... 2754 1 Commercial printing,
gravure.
........... 2759 1 Commercial printing,
not elsewhere
classified.
276 ........... 1 Manifold business
forms.
........... 2761 1 Manifold business
forms.
278 ........... 1 Blankbooks, looseleaf
binders, and
bookbinding and
related work.
........... 2782 1 Blankbooks, looseleaf
binders and devices.
279 ........... 1 Service industries for
the printing trade.
........... 2796 1 Platemaking and related
services.
28........... ........... ........... 1 Chemicals and allied
products.
281 ........... 1 Industrial inorganic
chemicals.
........... 2813 1 Industrial gases.
........... 2819 1 Industrial inorganic
chemicals, not
elsewhere classified.
282 ........... 1 Plastics materials and
synthetic resins,
synthetic rubber,
cellulosic and other
manmade fibers, except
glass.
........... 2821 a Plastics materials,
synthetic resins, and
nonvulcanizable
elastomers.
........... 2822 2 Synthetic rubber
(vulcanizable
elastomers).
283 ........... 1 Drugs.
........... 2833 1 Medicinal chemicals and
botanical products.
........... 2834 1 Pharmaceutical
preparations.
........... 2835 1 In vitro and in vivo
diagnostic substances.
........... 2836 1 Biological products,
except diagnostic
substances.
284 ........... 1 Soap, detergents, and
cleaning preparations;
perfumes, cosmetics,
and other toilet
preparations.
........... 2841 1 Soap and other
detergents, except
specialty cleaners.
........... 2842 1 Specialty cleaning,
polishing, and
sanitation
preparations.
........... 2844 1 Perfumes, cosmetics,
and other toilet
preparations.
285 ........... 1 Paints, varnishes,
lacquers, enamels, and
allied products.
........... 2851 1 Paints, varnishes,
lacquers, enamels, and
allied products.
286 ........... 1 Industrial organic
chemicals.
........... 2865 1 Cyclic organic crudes
and intermediates, and
organic dyes and
pigments.
........... 2869 a Industrial organic
chemicals, not
elsewhere classified.
287 ........... 1 Agricultural chemicals.
........... 2873 1 Nitrogenous
fertilizers.
........... 2879 1 Pesticides and
agricultural
chemicals, not
elsewhere classified.
289 ........... 1 Miscellaneous chemical
products.
........... 2891 1 Adhesives and sealants.
........... 2899 1 Chemicals and chemical
preparations, not
elsewhere classified.
29........... ........... ........... 1 Petroleum refining and
related industries.
291 ........... 1 Petroleum refining.
........... 2911 1 Petroleum refining.
295 ........... 1 Asphalt paving and
roofing materials.
........... 2951 1 Asphalt paving mixtures
and blocks.
........... 2952 1 Asphalt felts and
coatings.
299 ........... a Miscellaneous products
of petroleum and coal.
........... 2992 a Lubricating oils and
greases.
30........... ........... ........... 1 Rubber and
miscellaneous plastics
products.
302 ........... 1 Rubber and plastics
footwear.
........... 3021 1 Rubber and plastics
footwear.
305 ........... 2 Gaskets, packing, and
sealing devices and
rubber and plastics
hose and belting.
[[Page 79]]
........... 3052 2 Rubber and plastics
hose and belting.
306 ........... 2 Fabricated rubber
products, not
elsewhere classified.
........... 3069 2 Fabricated rubber
products, not
elsewhere classified.
308 ........... 1 Miscellaneous plastics
products.
........... 3081 a Unsupported plastics
film and sheet.
........... 3082 3 Unsupported plastics
profile shapes.
........... 3083 1 Laminated plastics
plate, sheet, and
profile shapes.
........... 3084 a Plastics pipe.
........... 3085 1 Plastics bottles.
........... 3086 2 Plastics foam products.
........... 3087 3 Custom compounding of
purchased plastics
resin.
........... 3088 1 Plastics plumbing
fixtures.
........... 3089 1 Plastics products, not
elsewhere classified.
31........... ........... ........... 2 Leather and leather
products.
313 ........... 2 Boot and shoe cut stock
and findings.
........... 3131 2 Boot and shoe cut stock
and findings.
314 ........... 2 Footwear, except
rubber.
........... 3142 b House slippers.
........... 3143 2 Men's footwear, except
athletic.
........... 3144 1 Women's footwear,
except athletic.
........... 3149 2 Footwear, except
rubber, not elsewhere
classified.
315 ........... 3 Leather gloves and
mittens.
........... 3151 3 Leather gloves and
mittens.
316 ........... 3 Luggage.
........... 3161 3 Luggage.
317 ........... 2 Handbags and other
personal leather
goods.
........... 3171 3 Women's handbags and
purses.
........... 3172 1 Personal leather goods,
except women's
handbags and purses.
32........... ........... ........... 1 Stone, clay, glass, and
concrete products.
321 ........... 2 Flat glass.
........... 3211 2 Flat glass.
322 ........... 1 Glass and glassware,
pressed or blown.
........... 3221 1 Glass containers.
323 ........... 1 Glass products, made of
purchased glass.
........... 3231 1 Glass products, made of
purchased glass.
324 ........... 1 Cement, hydraulic.
........... 3241 1 Cement, hydraulic.
326 ........... 3 Pottery and related
products.
........... 3261 3 Vitreous china plumbing
fixtures and china and
earthenware fittings
and bathroom
accessories.
........... 3269 3 Pottery products, not
elsewhere classified.
327 ........... 1 Concrete, gypsum, and
plaster products.
........... 3271 2 Concrete block and
brick.
........... 3272 1 Concrete products,
except block and
brick.
........... 3273 1 Ready-mixed concrete.
........... 3274 1 Lime.
........... 3275 a Gypsum products.
328 ........... 1 Cut stone and stone
products.
........... 3281 1 Cut stone and stone
products.
329 ........... 1 Abrasive, asbestos, and
miscellaneous
nonmetallic mineral
products.
........... 3295 a Minerals and earths,
ground or otherwise
treated.
........... 3296 1 Mineral wool.
33........... ........... ........... 1 Primary metal
industries.
331 ........... 1 Steel works, blast
furnaces, and rolling
and finishing mills.
........... 3312 1 Steel works, blast
furnaces (including
coke ovens), and
rolling mills.
........... 3317 1 Steel pipe and tubes.
334 ........... 1 Secondary smelting and
refining of nonferrous
metals.
........... 3341 1 Secondary smelting and
refining of nonferrous
metals.
335 ........... 1 Rolling, drawing, and
extruding of
nonferrous metals.
........... 3351 1 Rolling, drawing, and
extruding of copper.
........... 3353 a Aluminum sheet, plate,
and foil.
........... 3354 1 Aluminum extruded
products.
336 ........... a Nonferrous foundries
(castings).
........... 3365 a Aluminum foundries.
339 ........... 1 Miscellaneous primary
metal products.
........... 3398 a Metal heat treating.
........... 3399 1 Primary metal products,
not elsewhere
classified.
34........... ........... ........... 1 Fabricated metal
products, except
machinery and
transportation
equipment.
341 ........... 1 Metal cans and shipping
containers.
........... 3411 1 Metal cans.
[[Page 80]]
........... 3412 1 Metal shipping barrels,
drums, kegs, and
pails.
342 ........... 1 Cutlery, handtools, and
general hardware.
........... 3421 3 Cutlery.
........... 3423 a Hand and edge tools,
except machine tools
and handsaws.
........... 3429 a Hardware, not elsewhere
classified.
343 ........... 2 Heating equipment,
except electric and
warm air; and plumbing
fixtures.
........... 3433 2 Heating equipment,
except electric and
warm air furnaces.
344 ........... 2 Fabricated structural
metal products.
........... 3441 1 Fabricated structural
metal.
........... 3442 2 Metal doors, sash,
frames, molding, and
trim.
........... 3443 1 Fabricated plate work
(boiler shops).
........... 3444 2 Sheet metal work.
........... 3446 3 Architectural and
ornamental metal work.
........... 3449 2 Miscellaneous
structural metal work.
345 ........... 1 Screw machine products,
and bolts, nuts,
screws, rivets, and
washers.
........... 3452 1 Bolts, nuts, screws,
rivets, and washers.
346 ........... 1 Metal forgings and
stampings.
........... 3469 1 Metal stampings, not
elsewhere classified.
347 ........... 2 Coating, engraving, and
allied services.
........... 3471 2 Electroplating,
plating, polishing,
anodizing and
coloring.
349 ........... 2 Miscellaneous
fabricated metal
products.
........... 3494 1 Valves and pipe
fittings, not
elsewhere classified.
........... 3495 2 Wire springs.
........... 3496 1 Miscellaneous
fabricated wire
products.
........... 3498 a Fabricated pipe and
pipe fittings.
........... 3499 2 Fabricated metal
products, not
elsewhere classified.
35........... ........... ........... 1 Industrial and
commercial machinery
and computer
equipment.
353 ........... a Construction, mining,
and materials handling
machinery and
equipment.
........... 3535 a Conveyors and conveying
equipment.
354 ........... 1 Metalworking machinery
and equipment.
........... 3541 a Machine tools, metal
cutting types.
........... 3544 1 Special dies and tools,
die sets, jigs and
fixtures, and
industrial molds.
........... 3545 1 Cutting tools, machine
tool accessories, and
machinists' precision
measuring devices.
355 ........... 1 Special industry
machinery, except
metalworking
machinery.
........... 3555 1 Printing trades
machinery and
equipment.
356 ........... 1 General industrial
machinery and
equipment.
........... 3562 a Ball and roller
bearings.
........... 3563 1 Air and gas
compressors.
........... 3564 a Industrial and
commercial fans and
blowers and air
purification
equipment.
........... 3568 1 Mechanical power
transmission
equipment, not
elsewhere classified.
........... 3569 1 General industrial
machinery and
equipment, not
elsewhere classified.
357 ........... 1 Computer and office
equipment.
........... 3571 3 Electronic computers.
........... 3572 1 Computer storage
devices.
........... 3577 1 Computer peripheral
equipment, not
elsewhere classified.
........... 3579 1 Office machines, not
elsewhere classified.
358 ........... 1 Refrigeration and
service industry
machinery.
........... 3585 1 Air-conditioning and
warm air heating
equipment and
commercial and
industrial
refrigeration
equipment.
........... 3589 b Service industry
machinery, not
elsewhere classified.
359 ........... 2 Miscellaneous
industrial and
commercial machinery
and equipment.
........... 3592 2 Carburetors, pistons,
piston rings, and
valves.
........... 3596 a Scales and balances,
except laboratory.
........... 3599 1 Industrial and
commercial machinery
and equipment, not
elsewhere classified.
36........... ........... ........... 1 Electronic and other
electrical equipment
and components, except
computer equipment.
361 ........... 1 Electronic transmission
and distribution
equipment.
........... 3612 1 Power, distribution,
and specialty
transformers.
........... 3613 1 Switchgear and
switchboard apparatus.
362 ........... 1 Electrical industrial
apparatus.
........... 3621 1 Motors and generators.
........... 3624 1 Carbon and graphite
products.
........... 3625 1 Relays and industrial
controls.
........... 3629 1 Electrical industrial
apparatus, not
elsewhere classified.
363 ........... a Household appliances.
........... 3639 a Household appliances,
not elsewhere
classified.
364 ........... 1 Electric lighting and
wiring equipment.
........... 3641 1 Electric lamp bulbs and
tubes.
[[Page 81]]
........... 3643 1 Current-carrying wiring
devices.
........... 3644 1 Noncurrent-carrying
wiring devices.
........... 3645 a Residential electric
lighting fixtures.
........... 3646 2 Commercial, industrial,
and institutional
electric lighting
fixtures.
........... 3648 2 Lighting equipment, not
elsewhere classified.
365 ........... 1 Household audio and
video equipment, and
audio recordings.
........... 3651 1 Household audio and
video equipment.
........... 3652 a Phonograph records and
pre-recorded audio
tapes and disks.
366 ........... 1 Communications
equipment.
........... 3661 1 Telephone and telegraph
apparatus.
........... 3663 1 Radio and television
broadcasting and
communications
equipment.
........... 3669 1 Communications
equipment, not
elsewhere classified.
367 ........... 1 Electronic components
and accessories.
........... 3672 2 Printed circuit boards.
........... 3674 1 Semiconductors and
related devices.
........... 3677 2 Electronic coils,
transformers and other
inductors.
........... 3678 1 Electronic connectors.
........... 3679 1 Electronic components,
not elsewhere
classified.
369 ........... 1 Miscellaneous
electrical machinery,
equipment, and
supplies.
........... 3692 1 Primary batteries, dry
and wet.
........... 3694 1 Electrical equipment
for internal
combustion engines.
37........... ........... ........... 1 Transportation
Equipment.
371 ........... 1 Motor vehicles and
motor vehicle
equipment.
........... 3713 1 Truck and bus bodies.
........... 3714 1 Motor vehicle parts and
accessories.
372 ........... 1 Aircraft and parts.
........... 3721 a Aircraft.
........... 3728 1 Aircraft parts and
auxiliary equipment,
not elsewhere
classified.
373 ........... 1 Ship and boat building
and repairing.
........... 3731 a Ship building and
repairing.
........... 3732 2 Boat building and
repairing.
379 ........... a Miscellaneous
transportation
equipment.
........... 3792 a Travel trailers and
campers.
38........... ........... ........... 1 Measuring, analyzing,
and controlling
instruments;
photographic, medical,
and optical goods,
watches and clocks.
381 ........... 1 Search, detection,
navigation, guidance,
aeronautical, and
nautical systems,
instruments, and
equipment.
........... 3812 1 Search, detection,
navigation, guidance,
aeronautical, and
nautical systems,
instruments, and
equipment.
382 ........... 1 Laboratory apparatus
and analytical,
optical, measuring,
and controlling
instrument.
........... 3821 1 Laboratory apparatus
and furniture.
........... 3822 1 Automatic controls for
regulating residential
and commercial
environments and
appliances.
........... 3823 1 Industrial instruments
for measurement,
display, and control
of process variables;
and related products.
........... 3824 a Totalizing fluid meters
and counting devices.
........... 3825 1 Instruments for
measuring and testing
of electricity and
electrical signals.
........... 3829 2 Measuring and
controlling devices,
not elsewhere
classified.
384 ........... 1 Surgical, medical, and
dental instruments and
supplies.
........... 3841 1 Surgical and medical
instruments and
apparatus.
........... 3842 1 Orthopedic, prosthetic,
and surgical
appliances and
supplies.
........... 3843 1 Dental equipment and
supplies.
........... 3844 a X-ray apparatus and
tubes and related
irradiation apparatus.
........... 3845 1 Electromedical and
electrotherapeutic
apparatus.
385 ........... 1 Ophthalmic goods.
........... 3851 1 Ophthalmic goods.
386 ........... a Photographic equipment
and supplies.
........... 3861 a Photographic equipment
and supplies.
387 ........... 1 Watches, clocks,
clockwork operated
devices, and parts.
........... 3873 1 Watches, clocks,
clockwork operated
devices, and parts.
39........... ........... ........... 1 Miscellaneous
manufacturing
industries.
391 ........... 1 Jewelry, silverware,
and plated ware.
........... 3911 1 Jewelry, precious
metal.
........... 3914 a Silverware, plated
ware, and stainless
steel ware.
........... 3915 1 Jewelers' findings and
materials, and
lapidary work.
394 ........... 2 Dolls, toys, games, and
sporting and athletic
goods.
........... 3942 2 Dolls and stuffed toys.
........... 3949 2 Sporting and athletic
goods, not elsewhere
classified.
395 ........... 2 Pens, pencils, and
other artists'
materials.
[[Page 82]]
........... 3951 3 Pens, mechanical
pencils, and parts.
........... 3952 a Lead pencils, crayons,
and artists'
materials.
........... 3953 1 Marking devices.
396 ........... 1 Costume jewelry,
costume novelties,
buttons, and
miscellaneous notions,
except precious metal.
........... 3961 1 Costume jewelry and
costume novelties,
except precious metal.
........... 3965 a Fasteners, buttons,
needles, and pins.
399 ........... 1 Miscellaneous
manufacturing
industries.
........... 3991 a Brooms and brushes.
........... 3993 2 Signs and advertising
specialties.
........... 3995 2 Burial caskets.
........... 3999 2 Manufacturing
industries, not
elsewhere classified.
------------------------------------------------------------------------
a=Category contained less than three employers.
[55 FR 12120, Mar. 30, 1990; 55 FR 12778, Apr. 5, 1990, as amended at 55
FR 39575, Sept. 27, 1990; 57 FR 1103, Jan. 10, 1992]
Appendix B to Part 510--Nonmanufacturing Industries Eligible for Minimum
Wage Phase-In
This appendix contains a listing of all non-manufacturing industries
(except those in major groups 01, 02, 08, and 09, pertaining to
agriculture) for which data were collected and compiled by the
Commonwealth of Puerto Rico for purposes of implementing the 1989
Amendments to FLSA. This listing follows the order and classifications
used in the SIC Manual, 1987, which is incorporated by reference in
these regulations (Sec. 510.21).
The data in this appendix are presented by major industry group
(two-digit classification), industry group number (three-digit
classification), and industry number (four-digit classification).
Tiers will not be listed for industry categories in which there were
fewer than three responding employers, or one responding employer had
more than 80 percent of the employment in the category, in conformance
with practices of the U.S. Bureau of Labor Statistics in collecting and
publishing similar data, until such time as Puerto Rico receives
appropriate waivers of confidentiality from all employers in such
categories. These categories are noted with an ``a'' on the following
table. In situations where one or more employers declined to furnish a
waiver, categories are noted with a ``b'' on the following table.
In addition, no tier will be listed where an industry was not
included in the original survey because it was not in existence, because
the industry was too small to be included, or for other reasons.
Employers who do not find the four-digit classification for their
industry shall refer to the appropriate three-digit classification under
which their establishment falls. If the appropriate three-digit
classification is not listed, employers shall refer to the appropriate
two-digit classification.
For example, no tier is listed for industry number 1423, crushed and
broken granite. However, a tier is listed for industry group 142,
crushed and broken stone, including riprap. Thus, an employer in
industry 1423 must use the tier listed for industry group 142, i.e.,
Tier 1. Furthermore, employers who find the appropriate four-digit
designation in this appendix must use that designation and cannot refer
to a two- or three-digit classification. For example, an employer with
industry number 5719, miscellaneous homefurnishings stores, which has a
Tier 1 designation, cannot refer to industry group number 571, home
furniture and furnishings stores, which has a Tier 2 designation.
Important: In referring to this appendix to determine appropriate
tier designations, please note that certain categories of employees are
subject to treatment under Tier 1 regardless of the average hourly wage
rate for the industry and the tier designation contained herein. These
employees, as listed in the 1989 Amendments, are those employed by:
(a) The United States,
(b) An establishment that is a hotel, motel, or restaurant, or
(c) Any other retail or service establishment that employs such
employee in connection with the preparation or offering of food or
beverages for human consumption, either on the premises, or by such
services as catering, banquet, box lunch, or curb or counter service, to
the public, to employees, or to members or guests of clubs.
Please note that these named categories may not correspond exactly
to categories established by the SIC manual.
[[Page 83]]
If no four-digit, three-digit, or two-digit classification is listed
for an industry, employers in that group must pay the Tier 1 rates.
Nonmanufacturing Industries
------------------------------------------------------------------------
Industry
Major group group Industry Tier Industry
number number
------------------------------------------------------------------------
01........... ........... ........... 3 Agricultural
production--crops.
011 ........... 3 Cash grains.
........... 0119 3 Cash grains, not
elsewhere classified.
013 ........... 3 Field crops, except
cash grains.
........... 0133 3 Sugarcane and sugar
beets.
........... 0139 3 Field crops, except
cash grains, not
elsewhere classified.
016 ........... 3 Vegetables and melons.
........... 0161 3 Vegetables and melons.
017 ........... 3 Fruits and tree nuts.
........... 0174 3 Citrus fruits.
........... 0179 3 Fruits and tree nuts,
not elsewhere
classified.
018 ........... 3 Horticultural
specialties.
........... 0181 3 Ornamental floriculture
and nursery products.
019 ........... 3 General farms,
primarily crop.
........... 0191 3 General farms,
primarily crop.
02........... ........... ........... 3 Agricultural
production--livestock
and animal
specialties.
021 ........... 3 Livestock, except dairy
and poultry.
........... 0211 3 Beef cattle feedlots.
........... 0213 3 Hogs.
024 ........... 3 Dairy farms.
........... 0241 3 Dairy farms.
025 ........... 3 Poultry and eggs.
........... 0251 3 Broiler, fryer, and
roaster chickens.
........... 0252 3 Chicken eggs.
........... 0254 2 Poultry hatcheries.
027 ........... 3 Animal specialties.
........... 0271 3 Fur-bearing animals and
rabbits.
........... 0272 2 Horse and other
equines.
........... 0273 3 Animal aquaculture.
........... 0279 3 Animal specialties, not
else where classified.
07........... ........... ........... 3 Agricultural services.
072 ........... 3 Crop services.
........... 0723 3 Crop preparation
services for market,
except cotton ginning.
074 ........... 2 Veterinary services.
075 ........... a Animal services except
veterinary.
........... 0751 a Livestock services,
except veterinary.
078 ........... 3 Landscape and
horticultural
services.
14........... ........... ........... 1 Mining and quarrying of
nonmetallic minerals,
except fuels.
........... 1422 2 Crushed and broken
limestone.
........... 1429 1 Crushed and broken
stone, not elsewhere
classified.
144 ........... 1 Sand and gravel.
........... 1442 1 Construction sand and
gravel.
15........... ........... ........... 1 Building construction-
general contractors
and operative
builders.
152 ........... 1 General building
contractors-
residential buildings.
154 ........... 1 General building
contractors-
nonresidential
buildings.
16........... ........... ........... 1 Heavy construction
other than building
construction-
contractors.
161 ........... 1 Highway and street
construction, except
elevated highways.
........... 1611 1 Highway and street
construction, except
elevated highways.
162 ........... 1 Heavy construction,
except highway and
street construction.
........... 1622 1 Bridge, tunnel, and
elevated highway
construction.
........... 1623 1 Water, sewer, pipeline,
and communications and
power line
construction.
........... 1629 a Heavy construction, not
elsewhere classified.
17........... ........... ........... 1 Construction-special
trade contractors.
171 ........... 1 Plumbing, heating and
air-conditioning.
........... 1711 1 Plumbing, heating and
air-conditioning.
172 ........... 2 Painting and paper
hanging.
........... 1721 2 Painting and paper
hanging.
173 ........... 1 Electrical work.
........... 1731 1 Electrical work.
174 ........... 1 Masonry, stonework,
tile setting, and
plastering.
........... 1741 1 Masonry, stone setting,
and other stone work.
........... 1742 1 Plastering, drywall,
acoustical, and
insulation work.
........... 1743 1 Terrazzo, tile, marble,
and mosaic work.
175 ........... a Carpentry and floor
work.
........... 1751 a Carpentry work.
176 ........... 2 Roofing, siding, and
sheet metal work.
........... 1761 2 Roofing, siding, and
sheet metal work.
[[Page 84]]
179 ........... 1 Miscellaneous special
trade contractors.
........... 1791 1 Structural steel
erection.
........... 1793 2 Glass and glazing work.
........... 1794 a Excavation work.
........... 1795 a Wrecking and demolition
work.
........... 1796 1 Installation or
erection of building
equipment, not
elsewhere classified.
........... 1799 1 Special trade
contractors, not
elsewhere classified.
41........... ........... ........... 3 Local and suburban
transit and interurban
highway passenger
transportation.
411 ........... 2 Local and suburban
passenger
transportation.
........... 4111 2 Local and suburban
transit.
412 ........... 3 Taxicabs.
........... 4121 3 Taxicabs.
413 ........... 3 Intercity and rural bus
transportation.
........... 4131 3 Intercity and rural bus
transportation.
415 ........... a School buses.
........... 4151 a School buses.
42........... ........... ........... 1 Motor freight
transportation and
warehousing.
421 ........... 1 Trucking and courier
services, except air.
422 ........... 1 Public warehousing and
storage.
........... 4221 1 Farm product
warehousing and
storage.
........... 4222 a Refrigerated
warehousing and
storage.
........... 4225 1 General warehousing and
storage.
........... 4226 1 Special warehousing and
storage, not elsewhere
classified.
44........... ........... ........... 1 Water transportation.
442 ........... a Deep sea domestic
transportation of
freight.
........... 4424 a Deep sea domestic
transportation of
freight.
444 ........... 1 Water transportation of
freight, not elsewhere
classified.
........... 4449 1 Water transportation of
freight, not elsewhere
classified.
449 ........... 1 Services incidental to
water transportation.
........... 4491 1 Marine cargo handling.
........... 4492 a Towing and tugboat
services.
........... 4499 1 Water transportation
services, not
elsewhere classified.
45........... ........... ........... 1 Transportation by air.
451 ........... 1 Air transportation,
scheduled, and air
courier services.
........... 4512 1 Air transportation,
scheduled.
452 ........... a Air transportation,
nonscheduled.
........... 4522 a Air transportation,
nonscheduled.
458 ........... a Airports, flying
fields, and airport
terminal services.
........... 4581 a Airports, flying
fields, and airport
terminal services.
46........... ........... ........... a Pipelines, except
natural gas.
461 ........... 1 Pipelines, except
natural gas.
........... 4613 1 Refined petroleum
pipelines.
47........... ........... ........... 1 Transportation
services.
472 ........... 1 Arrangement of
passenger
transportation.
........... 4729 1 Arrangement of
passenger
transportation, not
elsewhere classified.
473 ........... 1 Arrangement of
transportation of
freight and cargo.
........... 4731 1 Arrangement of
transportation of
freight and cargo.
478 ........... 1 Miscellaneous services
incidental to
transportation.
........... 4785 1 Fixed facilities and
inspection and
weighing services for
motor vehicle
transportation.
48........... ........... ........... 1 Communications.
482 ........... b Telegraph and other
message
communications.
........... 4822 b Telegraph and other
message
communications.
483 ........... 1 Radio and television
broadcasting stations.
........... 4832 1 Radio broadcasting
stations.
........... 4833 1 Television broadcasting
stations.
489 ........... 3 Communications
services, not
elsewhere classified.
........... 4899 3 Communications
services, not
elsewhere classified.
49........... ........... ........... 1 Electric, gas and
sanitary services.
492 ........... 1 Gas production and
distribution.
........... 4923 1 Natural gas
transmission and
distribution.
........... 4925 1 Mixed, manufactured, or
liquefied petroleum
gas production and/or
distribution.
495 ........... 1 Sanitary services.
........... 4953 1 Refuse systems.
497 ........... a Irrigation systems.
........... 4971 a Irrigation systems.
50........... ........... ........... 1 Wholesale trade-durable
goods.
501 ........... 1 Motor vehicles and
motor vehicle parts
and supplies.
[[Page 85]]
........... 5012 a Automobiles and other
motor vehicles.
........... 5013 1 Motor vehicle supplies
and new parts.
........... 5014 1 Tires and tubes.
502 ........... 1 Furniture and
homefurnishings.
........... 5021 2 Furniture.
........... 5023 1 Homefurnishings.
503 ........... 2 Lumber and other
construction
materials.
........... 5031 2 Lumber, plywood,
millwork, and wood
panels.
........... 5039 1 Construction materials,
not elsewhere
classified.
504 ........... 1 Professional and
commercial equipment
and supplies.
........... 5043 1 Photographic equipment
and supplies.
........... 5046 1 Commercial equipment,
not elsewhere
classified.
........... 5049 1 Professional equipment
and supplies, not
elsewhere classified.
505 ........... 1 Metals and minerals,
except petroleum.
........... 5051 1 Metals service centers
and offices.
506 ........... 1 Electrical goods.
........... 5063 1 Electrical apparatus
and equipment, wiring
supplies and
construction
materials.
........... 5064 1 Electrical appliances,
television and radio
sets.
........... 5065 1 Electronic parts and
equipment, not
elsewhere classified.
507 ........... 1 Hardware, and plumbing
and heating equipment
and supplies.
........... 5072 1 Hardware.
........... 5074 1 Plumbing and heating
equipment and supplies
(hydronics).
........... 5075 a Warm air heating and
air-conditioning
equipment and
supplies.
........... 5078 a Refrigeration equipment
and supplies.
508 ........... 1 Machinery, equipment,
and supplies.
........... 5082 1 Construction and mining
(except petroleum)
machinery and
equipment.
........... 5083 a Farm and garden
machinery and
equipment.
........... 5084 1 Industrial machinery
and equipment.
........... 5085 1 Industrial supplies.
........... 5087 2 Service establishment
equipment and
supplies.
509 ........... 1 Miscellaneous durable
goods.
........... 5091 a Sporting and
recreational goods and
supplies.
........... 5092 1 Toys and hobby goods
and supplies.
........... 5093 1 Scrap and waste
materials.
........... 5094 1 Jewelry, watches,
precious stones, and
precious metals.
........... 5099 1 Durable goods, not
elsewhere classified.
51........... ........... ........... 1 Wholesale trade--
nondurable goods.
511 ........... 1 Paper and paper
products.
........... 5111 1 Printing and writing
paper.
........... 5112 3 Stationery and office
supplies.
........... 5113 1 Industrial and personal
service paper.
512 ........... 1 Drugs, drug
proprietaries, and
druggists' sundries.
........... 5122 1 Drugs, drug
proprietaries, and
druggists' sundries.
513 ........... 2 Apparel, piece goods,
and notions.
........... 5131 2 Piece goods, notions,
and other dry goods.
........... 5136 1 Men's and boys'
clothing and
furnishings.
........... 5137 3 Women's, children's,
and infants' clothing
and accessories.
........... 5139 2 Footwear.
514 ........... 1 Groceries and related
products.
........... 5141 1 Groceries, general
line.
........... 5142 1 Packaged frozen foods.
........... 5143 a Dairy products, except
dried or canned.
........... 5144 3 Poultry and poultry
products.
........... 5145 a Confectionery.
........... 5146 a Fish and seafoods.
........... 5147 a Meats and meat
products.
........... 5148 1 Fresh fruits and
vegetables.
........... 5149 1 Groceries and related
products, not
elsewhere classified.
515 ........... a Farm-product raw
materials.
........... 5154 a Livestock.
516 ........... 1 Chemicals and allied
products.
........... 5169 1 Chemicals and allied
products, not
elsewhere classified.
517 ........... 1 Petroleum and petroleum
products.
........... 5171 1 Petroleum bulk stations
and terminals.
........... 5172 1 Petroleum and petroleum
products wholesalers,
except bulk stations
and terminals.
518 ........... 1 Beer, wine and
distilled alcoholic
beverages.
........... 5181 1 Beer and ale.
519 ........... 1 Miscellaneous
nondurable goods.
[[Page 86]]
........... 5191 3 Farm supplies.
........... 5194 3 Tobacco and tobacco
products.
........... 5198 b Paints, varnishes, and
supplies.
........... 5199 1 Nondurable goods, not
elsewhere classified.
52........... ........... ........... 2 Building materials,
hardware, garden
supply, and mobile
home dealers.
521 ........... 3 Lumber and other
building materials
dealers.
........... 5211 3 Lumber and other
building materials
dealers.
523 ........... 1 Paint, glass, and
wallpaper stores.
........... 5231 1 Paint, glass, and
wallpaper stores.
525 ........... 2 Hardware stores.
........... 5251 2 Hardware stores.
526 ........... 3 Retail nurseries, lawn
and garden supply
stores.
........... 5261 3 Retail nurseries, lawn
and garden supply
stores.
53........... ........... ........... 1 General merchandise
stores.
531 ........... 1 Department stores.
........... 5311 1 Department stores.
533 ........... 2 Variety stores.
........... 5331 2 Variety stores.
539 ........... 3 Miscellaneous general
merchandise stores.
........... 5399 3 Miscellaneous general
merchandise stores.
54........... ........... ........... 2 Food stores.
541 ........... 2 Grocery stores.
........... 5411 2 Grocery stores.
542 ........... 1 Meat and fish (seafood)
markets, including
freezer provisioners.
........... 5421 1 Meat and fish (seafood)
markets, including
freezer provisioners.
........... 5421 a Meat and fish (seafood)
markets, including
freezer provisioners.
543 ........... 3 Fruit and vegetable
markets.
........... 5431 3 Fruit and vegetable
markets.
546 ........... 3 Retail bakeries.
........... 5461 3 Retail bakeries.
549 ........... 3 Miscellaneous food
stores.
........... 5499 3 Miscellaneous food
stores.
55........... ........... ........... 1 Automotive dealers and
gasoline service
stations.
551 ........... 1 Motor vehicle dealers
(new and used).
........... 5511 1 Motor vehicle dealers
(new and used).
552 ........... 2 Motor vehicle dealers
(used only).
........... 5521 2 Motor vehicle dealers
(used only).
553 ........... 1 Auto and home supply
stores.
........... 5531 1 Auto and home supply
stores.
554 ........... 3 Gasoline service
stations.
........... 5541 3 Gasoline service
stations.
56........... ........... ........... 3 Apparel and accessory
stores.
561 ........... 3 Men's and boys'
clothing and accessory
stores.
........... 5611 3 Men's and boys'
clothing and accessory
stores.
562 ........... 3 Women's clothing
stores.
........... 5621 3 Women's clothing
stores.
563 ........... 3 Women's accessory and
specialty stores.
........... 5632 3 Women's accessory and
specialty stores.
564 ........... 3 Children's and infants'
wear stores.
........... 5641 3 Children's and infants'
wear stores.
565 ........... 3 Family clothing stores.
........... 5651 3 Family clothing stores.
566 ........... 2 Shoe stores.
........... 5661 2 Shoe stores.
569 ........... 3 Miscellaneous apparel
and accessory stores.
........... 5699 3 Miscellaneous apparel
and accessory stores.
57........... ........... ........... 2 Home furniture,
furnishings, and
equipment stores.
571 ........... 2 Home furniture and
furnishings stores.
........... 5712 2 Furniture stores.
........... 5713 a Floor covering stores.
........... 5714 3 Drapery, curtain, and
upholstery stores.
........... 5719 1 Miscellaneous
homefurnishings
stores.
572 ........... 1 Household appliance
stores.
........... 5722 1 Household appliance
stores.
573 ........... 2 Radio, television,
consumer electronics,
and music stores.
........... 5731 a Radio, television, and
consumer electronics
stores.
........... 5735 1 Record and prerecorded
tape stores.
58........... ........... ........... 1 Eating and drinking
places.
\1\ 581 ........... 1 Eating and drinking
places.
59........... ........... ........... 1 Miscellaneous retail.
[[Page 87]]
591 ........... 1 Drug stores and
proprietary stores.
........... 5912 1 Drug stores and
proprietary stores.
592 ........... a Liquor stores.
........... 5921 a Liquor stores.
593 ........... 3 Used merchandise
stores.
........... 5932 3 Used merchandise
stores.
594 ........... 1 Miscellaneous shopping
goods stores.
........... 5941 1 Sporting goods stores
and bicycle shops.
........... 5942 1 Book stores.
........... 5943 2 Stationery stores.
........... 5944 1 Jewelry stores.
........... 5945 3 Hobby, toy, and game
shops.
........... 5946 2 Camera and photographic
supply stores.
........... 5947 3 Gift, novelty, and
souvenir shops.
........... 5949 3 Sewing, needlework, and
piece goods stores.
596 ........... a Nonstore retailers.
........... 5962 a Automatic merchandising
machine operators.
........... 5963 a Direct selling
establishments.
598 ........... 2 Fuel dealers.
........... 5984 2 Liquefied petroleum gas
(bottled gas) dealers.
599 ........... 1 Retail stores, not
elsewhere classified.
........... 5992 3 Florists.
........... 5999 1 Miscellaneous retail
stores, not elsewhere
classified.
60........... ........... ........... 1 Depository
institutions.
602 ........... 1 Commercial banks.
........... 6021 1 National commercial
banks.
........... 6022 1 State commercial banks.
........... 6029 1 Commercial banks, not
elsewhere classified.
603 ........... 1 Savings institutions.
........... 6035 1 Savings institutions,
Federally chartered.
........... 6036 1 Savings institutions,
not Federally
chartered.
606 ........... 1 Credit unions.
........... 6061 1 Credit unions,
Federally chartered.
........... 6062 1 Credit unions, not
Federally chartered.
609 ........... 2 Functions related to
depository banking.
........... 6099 2 Functions related to
depository banking,
not elsewhere
classified.
61........... ........... ........... 1 Nondepository credit
institutions.
614 ........... 1 Personal credit
institutions.
........... 6141 1 Personal credit
institutions.
615 ........... 1 Business credit
institutions.
........... 6153 b Short-term business
credit institutions,
except agricultural.
........... 6159 1 Miscellaneous business
credit institutions.
616 ........... 1 Mortgage bankers and
brokers.
........... 6162 1 Mortgage bankers and
loan correspondents.
62........... ........... ........... 1 Security and commodity
brokers, dealers,
exchanges, and
services.
621 ........... 1 Security brokers,
dealers, and flotation
companies.
........... 6211 1 Security brokers,
dealers, and flotation
companies.
622 ........... a Commodity contracts
brokers and dealers.
........... 6221 a Commodity contracts
brokers and dealers.
63........... ........... ........... 1 Insurance carriers.
631 ........... 1 Life insurance.
........... 6311 1 Life insurance.
632 ........... 1 Accidental and health
insurance and medical
service plans.
........... 6321 1 Accident and health
insurance.
........... 6324 b Hospital and medical
service plans.
633 ........... 1 Fire, marine, and
casualty insurance.
........... 6331 1 Fire, marine, and
casualty insurance.
635 ........... 1 Surety insurance.
........... 6351 1 Surety insurance.
636 ........... b Title insurance.
........... 6361 b Title insurance.
637 ........... 1 Pension, health, and
welfare funds.
........... 6371 1 Pension, health, and
welfare funds.
64........... ........... ........... 1 Insurance agents,
brokers, and service.
641 ........... 1 Insurance agents,
brokers, and service.
........... 6411 1 Insurance agents,
brokers, and service.
65........... ........... ........... 1 Real estate.
651 ........... 1 Real estate operators
(except developers)
and lessors.
653 ........... 1 Real estate agents and
managers.
........... 6531 1 Real estate agents and
managers.
[[Page 88]]
655 ........... 1 Land subdividers and
developers.
........... 6552 1 Land subdividers and
developers, except
cemeteries.
........... 6553 a Cemetery subdividers
and developers.
70........... ........... ........... 1 Hotels, rooming houses,
camps, and other
lodging places.
701 ........... 1 Hotels and motels.
........... 7011 1 Hotels and motels.
702 ........... 1 Rooming and boarding
houses.
........... 7021 1 Rooming and boarding
houses.
72........... ........... ........... 1 Personal services.
721 ........... 2 Laundry, cleaning, and
garment services.
722 ........... 3 Photographic studios,
portrait.
........... 7221 3 Photographic studios,
portrait.
723 ........... 1 Beauty shops.
........... 7231 1 Beauty shops.
724 ........... 1 Barber shops
........... 7241 1 Barber shops.
725 ........... 2 Shoe repair shops and
shoeshine parlors.
........... 7251 2 Shoe repair shops and
shoeshine parlors.
726 ........... 1 Funeral service and
crematories.
........... 7261 1 Funeral service and
crematories.
729 ........... 1 Miscellaneous personal
services.
........... 7299 1 Miscellaneous personal
services, not
elsewhere classified.
73........... ........... ........... 2 Business services.
731 ........... 1 Advertising.
........... 7311 1 Advertising agencies.
........... 7312 1 Outdoor advertising
services.
........... 7319 a Advertising, not
elsewhere classified.
732 ........... b Consumer credit
reporting agencies,
mercantile reporting
agencies, and
adjustment and
collection agencies.
........... 7323 b Credit reporting
services.
733 ........... 2 Mailing, reproduction,
commercial art and
photography, and
stenographic services.
........... 7338 2 Secretarial and court
reporting services.
734 ........... 3 Services to dwellings
and other buildings.
........... 7342 3 Disinfecting and pest
control services.
........... 7349 3 Building cleaning and
maintenance services,
not elsewhere
classified.
735 ........... 1 Miscellaneous equipment
rental and leasing.
........... 7359 1 Equipment rental and
leasing, not elsewhere
classified.
736 ........... 2 Personnel supply
services.
........... 7361 2 Employment agencies.
........... 7363 2 Help supply services.
737 ........... 1 Computer programming,
data processing, and
other computer related
services.
........... 7372 1 Prepackaged software.
........... 7374 1 Computer processing and
data preparation and
processing services.
........... 7379 1 Computer related
services, not
elsewhere classified.
738 ........... 3 Miscellaneous business
services.
........... 7382 3 Security systems
services.
........... 7384 1 Photofinishing
laboratories.
........... 7389 1 Business services, not
elsewhere classified.
75........... ........... ........... 1 Automotive repair,
services, and parking.
751 ........... 1 Automotive rental and
leasing, without
drivers.
........... 7513 3 Truck rental and
leasing, without
drivers.
........... 7514 1 Passenger car rental.
752 ........... 3 Automobile parking.
........... 7521 3 Automobile parking.
753 ........... 1 Automotive repair
shops.
........... 7532 2 Top, body, and
upholstery repair
shops and paint shops.
........... 7534 1 Tire retreading and
repair shops.
........... 7538 3 General automotive
repair shops.
........... 7539 2 Automotive repair
shops, not elsewhere
classified.
754 ........... 3 Automotive services,
except repair.
........... 7542 3 Carwashes.
........... 7549 3 Automotive services,
except repair and
carwashes.
76........... ........... ........... 1 Miscellaneous repair
services.
762 ........... 1 Electrical repair
shops.
........... 7622 3 Radio and television
repair shops.
........... 7623 1 Refrigeration and air-
conditioning service
and repair shops.
........... 7629 1 Electrical and
electronic repair
shops, not elsewhere
classified.
763 ........... 2 Watch, clock, and
jewelry repair.
[[Page 89]]
........... 7631 2 Watch, clock, and
jewelry repair.
764 ........... 3 Reupholstery and
furniture repair.
........... 7641 3 Reupholstery and
furniture repair.
769 ........... 1 Miscellaneous repair
shops and related
services.
........... 7692 2 Welding repair.
........... 7694 1 Armature rewinding
shops.
........... 7699 1 Repair shops and
related services, not
elsewhere classified.
78........... ........... ........... 1 Motion pictures.
781 ........... 1 Motion picture
production and allied
services.
........... 7812 1 Motion picture and
video tape production.
782 ........... 2 Motion picture
distribution and
allied services.
........... 7822 2 Motion picture and
video tape
distribution.
783 ........... 3 Motion picture
theaters.
........... 7832 3 Motion picture
theaters, except drive-
in.
........... 7833 a Drive-in motion picture
theaters.
79........... ........... ........... 1 Amusement and
recreation services.
791 ........... 2 Dance studios, schools,
and halls.
........... 7911 2 Dance studios, schools,
and halls.
792 ........... a Theatrical producers
(except motion
picture), bands,
orchestras, and
entertainers.
........... 7929 a Bands, orchestras,
actors, and other
entertainers and
entertainment groups.
793 ........... 3 Bowling centers.
........... 7933 3 Bowling centers.
794 ........... a Commercial sports.
........... 7941 a Professional sports
clubs and promoters.
........... 7948 a Racing, including track
operation.
799 ........... 2 Miscellaneous amusement
and recreation
services.
........... 7993 2 Coin-operated amusement
devices.
........... 7997 1 Membership sports and
recreation clubs.
........... 7999 2 Amusement and
recreation services
not elsewhere
classified.
80........... ........... ........... 1 Health services.
801 ........... 1 Offices and clinics of
doctors of medicine.
........... 8011 1 Offices and clinics of
doctors of medicine.
802 ........... 1 Offices and clinics of
dentists.
........... 8021 1 Offices and clinics of
dentists.
803 ........... a Offices and clinics of
doctors of osteopathy.
........... 8031 a Offices and clinics of
doctors of osteopathy.
804 ........... 1 Offices and clinics of
other health
practitioners.
........... 8049 1 Offices and clinics of
health practitioners,
not elsewhere
classified.
805 ........... b Nursing and personal
care facilities.
........... 8059 b Nursing and personal
care facilities, not
elsewhere classified.
806 ........... 1 Hospitals.
........... 8062 1 General medical and
surgical hospitals.
........... 8063 1 Psychiatric hospitals.
........... 8069 1 Specialty hospitals,
except psychiatric.
807 ........... 1 Medical and dental
laboratories.
........... 8071 1 Medical laboratories.
........... 8072 a Dental laboratories.
809 ........... 1 Miscellaneous health
and allied services,
not elsewhere
classified.
........... 8099 1 Health and allied
services, not
elsewhere classified.
81........... ........... ........... 1 Legal services.
811 ........... 1 Legal services.
........... 8111 1 Legal services.
82........... ........... ........... 1 Educational services.
821 ........... 2 Elementary and
secondary schools.
........... 8211 2 Elementary and
secondary schools.
822 ........... 1 Colleges, universities,
professional schools,
and junior colleges.
........... 8221 1 Colleges, universities,
and professional
schools.
........... 8222 1 Junior colleges and
technical institutes.
824 ........... 2 Vocational schools.
........... 8243 a Data processing
schools.
........... 8244 2 Business and
secretarial schools.
........... 8249 2 Vocational schools, not
elsewhere classified.
829 ........... 1 Schools and educational
services, not
elsewhere classified.
........... 8299 1 Schools and educational
services, not
elsewhere classified.
83........... ........... ........... 1 Social services.
832 ........... 1 Individual and family
social services.
........... 8322 1 Individual and family
social services.
833 ........... 3 Job training and
vocational
rehabilitation
services.
........... 8331 3 Job training and
vocational
rehabilitation
services.
[[Page 90]]
835 ........... 1 Child day care
services.
........... 8351 1 Child day care
services.
836 ........... 2 Residential care.
........... 8361 2 Residential care.
839 ........... a Social services, not
elsewhere classified.
........... 8399 a Social services, not
elsewhere classified.
84........... ........... ........... 3 Museums, art galleries,
and botanical and
zoological gardens.
841 ........... 3 Museums and art
galleries.
........... 8412 3 Museums and art
galleries.
86........... ........... ........... 1 Membership
organizations.
861 ........... 1 Business associations.
........... 8611 1 Business associations.
862 ........... 1 Professional membership
organizations.
........... 8621 1 Professional membership
organizations.
863 ........... 1 Labor unions and
similar labor
organizations.
........... 8631 1 Labor unions and
similar labor
organizations.
864 ........... 2 Civic, social, and
fraternal
associations.
........... 8641 2 Civic, social, and
fraternal
associations.
866 ........... 2 Religious
organizations.
........... 8661 2 Religious
organizations.
869 ........... 2 Membership
organizations, not
elsewhere classified.
........... 8699 2 Membership
organizations, not
elsewhere classified.
87........... ........... ........... 1 Engineering,
accounting, research,
management, and
related services.
871 ........... 1 Engineering,
architectural, and
surveying services.
........... 8711 1 Engineering services.
872 ........... 1 Accounting, auditing,
and bookkeeping
services.
........... 8721 1 Accounting, auditing,
and bookkeeping
services.
873 ........... 1 Research, development,
and testing services.
........... 8733 1 Noncommercial research
organizations.
88........... ........... ........... 3 Private households.
881 ........... 3 Private households.
........... 8811 3 Private households.
------------------------------------------------------------------------
``a''=Category contained less than three responding employers or one
responding employer had more than 80 percent of the employment in the
category.
``b''=Firm(s) declined to furnish waivers in these categories.
\1\ Survey data reported on the basis of SIC code 5810. Data were not
broken down by SIC 5812, Eating places, and 5813 Drinking places
(Alcoholic beverages).
[55 FR 12120, Mar. 30, 1990; 55 FR 12778, Apr. 5, 1990, as amended at 55
FR 39577, Sept. 27, 1990; 55 FR 53248, Dec. 27, 1990; 57 FR 1104, Jan.
10, 1992]
Appendix C to Part 510--Government Corporations Eligible for Minimum
Wage Phase-In
This appendix contains a listing of the public organizations
(corporations) in Puerto Rico for which data have been provided by the
Commonwealth for purposes of implementing the 1989 Amendments to FLSA.
Such Corporations are subject to Tiers 1, 2, or 3, as set forth below.
Corporations which are listed under Tier 3 may pay rates specified under
Tier 4 to employees engaged in traditional activities, as defined in
Sec. 510.25 of the regulations. All other employees are subject to Tier
3. Organizations for which no data were provided are subject to Tier 1
treatment.
------------------------------------------------------------------------
Tier Organization
------------------------------------------------------------------------
1 Automobile Accidents Compensation
Administration.
1 Cardiovascular Center Corporation of
Puerto Rico and the Caribbean.
2 Culebra Conservation and Development
Authority.
3 Government Development Bank of Puerto
Rico.
1 Highway Authority.
2 Industries for the Blind, Mentally
Retarded, and other Disabled Persons
of Puerto Rico.
1 Institute of Puerto Rican Culture.
2 Corporation for the Development and
Administration of Marine, Lacustrine,
and Fluvial Resources of Puerto Rico.
1 Metropolitan Bus Authority.
2 Puerto Rico Mineral Resource
Development Corporation.
1 Musical Arts Corporation.
1 Public Building Authority.
1 Puerto Rico Institute of
Cinematographic and Television Arts
and Industries.
1 Puerto Rico Aqueducts and Sewer
Authority.
1 Puerto Rico Communications Authority.
1 Puerto Rico Land Administration.
1 Puerto Rico Marine Shipping Authority.
1 Puerto Rico Medical Service
Administration.
1 Puerto Rico Ports Authority.
1 Puerto Rico Musical Performing Arts
Corporation.
[[Page 91]]
2 Puerto Rico Rural Development
Corporation.
3 Puerto Rico Sugar Board.
1 Puerto Rico Telephone Company.
2 Puerto Rico Solid Waste Management
Authority.
1 Puerto Rico Housing Bank.
1 Puerto Rico Tourism Company.
3 Puerto Rico Renewal and Housing
Corporation.
3 Puerto Rico Industrial Development
Bank.
3 Recreational Development Company.
2 Right to Work Administration.
------------------------------------------------------------------------
Appendix D to Part 510--Municipalities Eligible for Minimum Wage Phase-
In
This appendix contains a listing of the municipalities in Puerto
Rico and the tier applicable to each. Municipalities with average hourly
earnings below $4.65 but equal to or greater than $4.00 are subject to
Tier 2, as set forth below. Municipalities with average hourly earnings
under $4.00 are subject to Tier 3. Municipalities which are listed under
Tier 3 may pay the rates specified under Tier 4 to employees engaged in
traditional activities, as defined in Sec. 510.25 of the regulations.
All other employees are subject to Tier 3. Municipalities which did not
submit data are subject to Tier 1. The tiers set forth below are subject
to petitions for review by affected employees, if filed prior to June 1,
1990. If upon review it is determined that the municipality should have
been subject to Tier 1 or 2, back wages will have to be paid to April 1,
1990, to make up the difference between what municipal employees were
paid and what they should have been paid.
------------------------------------------------------------------------
Tier Municipality
------------------------------------------------------------------------
3 Adjuntas.
3 Aguada.
3 Aguadilla.
3 Aguas Buenas.
3 Aibonito.
3 A[ntilde]asco.
3 Arecibo.
3 Arroyo.
3 Barceloneta.
3 Barranquitas.
3 Bayamon.
3 Cabo Rojo.
3 Caguas.
3 Camuy.
2 Canovanas.
3 Carolina.
3 Cata[ntilde]o.
3 Cayey.
2 Ceiba.
3 Ciales.
3 Cidra.
3 Coamo.
2 Comerio.
3 Corozal.
3 Culebra.
2 Dorado.
3 Fajardo.
3 Florida.
3 Guanica.
3 Guyama.
2 Guayanilla.
3 Guaynabo.
3 Guarbo.
3 Hatillo.
3 Hormigueros.
3 Humacao.
3 Isabela.
3 Jayuya.
3 Juana Diaz.
3 Juncos.
2 Lajas.
3 Lares.
3 Las Marias.
3 Las Piedras.
3 Loiza.
3 Luquillo.
1 Manati.
3 Maricao.
3 Maunabo.
3 Mayaguez.
2 Moca.
3 Morovis.
3 Naguabo.
2 Naranjito.
3 Orocovis.
3 Patillas.
3 Pe[ntilde]uelas.
3 Ponce.
3 Quebradillas.
3 Rincon.
3 Rio Grande.
3 Sabana Grande.
3 Salinas.
3 San German.
2 San Juan.
3 San Lorenzo.
3 San Sebastian.
3 Santa Isabel.
3 Toa Alta.
3 Toa Baja.
2 Trujillo Alto.
3 Utuado.
3 Vega Alta.
3 Vega Baja.
3 Vieques.
3 Villalba.
3 Yabucoa.
3 Yauco.
------------------------------------------------------------------------
PART 511_WAGE ORDER PROCEDURE FOR AMERICAN SAMOA--Table of Contents
Sec.
511.1 General method for issuance of wage orders.
511.2 Initiation of proceedings; notices of hearings.
511.3 Composition and appointment of committees.
511.4 Compensation of committee members.
511.5 Vacancies and dissolution of committees.
511.6 Investigation.
511.7 Committee staff.
511.8 Prehearing statements.
511.9 Requirements for quorum and decisions.
511.10 Subjects and issues.
511.11 Pertinent data.
[[Page 92]]
511.12 Committee and subcommittee meetings.
511.13 Evidence.
511.14 Procedure for receiving evidence.
511.15 Submittals prior to reports.
511.16 Reports.
511.17 Records.
511.18 Publication and effective date of wage order.
511.19 Petitions.
Authority: 29 U.S.C. 205, 206, 208; 5 U.S.C. 551-559.
Source: 21 FR 7669, Oct. 6, 1956, unless otherwise noted.
Sec. 511.1 General method for issuance of wage orders.
Pursuant to authority delegated by the Secretary of Labor, the
Administrator of the Wage and Hour Division publishes the orders that
are required by statute to make the recommendations of industry
committees effective as wage orders under section 6(a)(3) of the Fair
Labor Standards Act. The wage orders issued by the Administrator must by
law give effect to the recommendations of the industry committees. All
wage order proceedings will be conducted in accordance with the
standards provided in the Administrative Procedure Act as interpreted
and applied in this part.
[55 FR 53298, Dec. 28, 1990]
Sec. 511.2 Initiation of proceedings; notices of hearings.
(a) Wage order proceedings are initiated by order of the Secretary,
published in the Federal Register, giving notice of hearings by industry
committees to recommend the minimum rate or rates of wages to be paid
under section 6 of the Act to employees in American Samoa engaged in
commerce or in the production of goods for commerce or in any enterprise
engaged in commerce or in the production of goods for commerce. These
orders will contain a definition of the particular industry in American
Samoa, for which the committee is to make its recommendations, or these
orders will direct the committee to recommend the minimum rate or rates
of wages for all industry in American Samoa. All such orders will make
provision for convening the committee. Any particular industry defined
in such an order may be a trade, business, industry, or branch thereof,
or group of industries, in which individuals are gainfully employed.
(b) These orders will also give reasonable notice (1) of the time
and place of the commencement of the hearing of such witnesses and
receiving of such evidence as may be necessary or appropriate to enable
the committee to perform its duties and functions under the Act, (2) of
the general nature of the wage order proceedings and the authority under
which they are proposed, (3) of the subjects and issues involved, and
(4) that the committee will take official notice of the economic report
(note Sec. 511.13) and the parties will have an opportunity at the
hearing to show any contrary or additional facts.
[26 FR 6513, July 20, 1961, as amended at 55 FR 12120, Mar. 30, 1990]
Sec. 511.3 Composition and appointment of committees.
An industry committee will be composed of residents of American
Samoa and residents of the United States outside of American Samoa. The
Secretary will appoint as members of each committee an equal number of
persons representing:
(a) The public,
(b) Employees in the industry, and
(c) Employers in the industry.
The public members shall be disinterested, and the Secretary will
designate one as chairperson. For purposes of this section only, the
definition of the industry shall be considered to include all such
industry throughout the United States, its territories and possessions.
[55 FR 53298, Dec. 28, 1990]
Sec. 511.4 Compensation of committee members.
Each member of an industry committee will be allowed per diem
compensation at the rate specified in Chapter 304 of the Department of
Labor Supplement to the Federal Personnel Manual for each day actually
spent in the work of the committee, and will, in addition, be reimbursed
for necessary transportation and other expenses incident to traveling in
accordance with Standard Government Travel Regulations then in effect.
All travel expenses
[[Page 93]]
will be paid on travel vouchers certified by the Administrator or an
authorized representative. Any other necessary expenses that are
incidental to the work of the committee may be incurred by the committee
upon approval of, and shall be paid upon, certification of the
Administrator or an authorized representative.
[58 FR 34524, June 28, 1993]
Sec. 511.5 Vacancies and dissolution of committees.
The Secretary will appoint persons to fill any vacancies occurring
in industry committees. If an industry committee is unable to arrive at
a recommendation within a reasonable time, or refuses to make a
recommendation, it may be dissolved by the Secretary. An industry
committee shall cease to perform further functions when it has filed
with the Administrator its report containing its findings of fact and
recommendations with respect to the matters referred to it, and shall
not again perform any functions with respect to any matter reported on,
unless and until directed by the Administrator. An industry committee
shall be dissolved automatically when its recommendations are no longer
subject to review under section 10 of the Act.
[27 FR 10651, Nov. 1, 1962]
Sec. 511.6 Investigation.
The Administrator shall prepare an economic report containing such
data as can be assembled pertinent to the matters to be referred to a
committee. A copy of these regulations will be sent to all members of
the committee following their appointment, and a copy of the economic
report when completed will be furnished promptly. Before making its
report the committee will decide whether it will conduct any further
investigation, apart from the hearing and the review of the economic
report, in connection with the matters referred to it.
[55 FR 53298, Dec. 28, 1990]
Sec. 511.7 Committee staff.
Each industry committee will be furnished a lawyer, to serve as
committee counsel, and an economist, to serve as committee economist.
Committee counsel shall advise the committee on the issues of law,
including interpretations of these regulations and the legal scope of
the committee's discretion, which arise during the committee
proceedings. The committee counsel and economist shall be available to
advise and assist the committee at all of its meetings. The
Administrator shall furnish the committee with adequate stenographic,
clerical, and other assistance.
Sec. 511.8 Prehearing statements.
(a) Every employer, employee, trade association, trade union, or
group of employers, employees, associations, or unions in the industry
as defined, or in such industry elsewhere in the United States, and
every other person who, in the judgment of the committee has an interest
sufficient to justify the participation proposed by such party, shall be
considered an interested person. No member of the committee may
participate as an interested person.
(b) Any interested person who wishes to participate on his or her
own behalf or by counsel shall file a written prehearing statement
within such period of time as may be prescribed in a notice of hearing,
or other notice published in the Federal Register. The number of copies
of such statements and the time and places for filing them will be
specified in notices of hearings. The prehearing statement shall
describe the person's interest in the proceeding and shall contain:
(1) The prepared statement he or she proposes to give, if any;
(2) A statement of the individual classifications and minimum wage
rates, if any, he or she proposes to support;
(3) The written data he or she proposes to introduce in evidence,
including all tangible objective data to be submitted pursuant to Sec.
511.13;
(4) The names and addresses of the witnesses he or she proposes to
call and a summary of the evidence he or she proposes to develop;
(5) The name and address of the individual who will present his or
her case; and
(6) A statement of the approximate length of time his or her case
will take.
[[Page 94]]
If the prehearing statement is in conformity with the above
requirements, the person shall have the right to participate as a party.
In accordance with section 6(c) of the Administrative Procedure Act, the
industry committee shall, after considering the advice of committee
counsel, issue subpoenas, authorized by section 9 of the Fair Labor
Standards Act of 1938, to parties who make a request therefor
accompanied by a clear showing of general relevance and reasonable scope
of the evidence sought.
(c) Prehearing statements of parties shall be made available for
examination at the offices where they are filed. Each person who files a
prehearing statement should, if requested, make himself or herself
available for conference with the committee staff to make any needed
clarification of his or her prehearing statement, and arrange details of
presenting his or her testimony or case.
(d) In exceptional circumstances a person who has not filed the
prehearing statement required by this section and who does not appear on
a witness list filed by a party may nevertheless be permitted, in the
discretion of the committee, to offer testimony.
[25 FR 14024, Dec. 31, 1960, as amended at 55 FR 53298, Dec. 28, 1990]
Sec. 511.9 Requirements for quorum and decisions.
Two-thirds of the members of an industry committee shall constitute
a quorum. Approval by a majority of all of the members of an industry
committee or subcommittee shall be required for its report. Except as
otherwise provided in this part, the chairperson of the industry
committee or subcommittee may make other decisions for the committee or
subcommittee, but each such decision shall be subject to approval of a
majority of the members present if any member objects.
[55 FR 53298, Dec. 28, 1990]
Sec. 511.10 Subjects and issues.
(a) The declared policy of the Act with respect to industries or
enterprises in American Samoa engaged in commerce or in the production
of goods for commerce is to reach as rapidly as is economically feasible
without substantially curtailing employment the object of the minimum
wage rate that would apply in each such industry under paragraph (1) of
section 6(a) but for section 6(a)(3) of the Act. Each industry committee
shall recommend to the Administrator the highest minimum wage rates for
the industry that it determines, having due regard to economic and
competitive conditions, will not substantially curtail employment in the
industry and will not give any industry in American Samoa a competitive
advantage over any industry in the United States outside of American
Samoa; except that the committee shall recommend to the Secretary the
minimum wage rate prescribed in section 6(a)(1), that would be
applicable but for section 6(a)(3), unless there is evidence in the
record that establishes that the industry, or a predominant portion
thereof, is unable to pay that wage due to such economic and competitive
conditions.
(b) Whenever the industry committee finds that a higher minimum wage
may be determined for employees engaged in certain activities or in the
manufacture of certain products in the industry than may be determined
for other employees in the industry, the industry committee shall
recommend such reasonable classifications within the industry as it
determines to be necessary for the purpose of fixing for each
classification the highest minimum wage rate (not in excess of that
prescribed in paragraph (1) of section 6(a) of the Act) that can be
determined for it under the principles set out in this section that will
not substantially curtail employment in such classification and will not
give a competitive advantage to any group in that industry. No
classification shall be made, however, and no minimum wage rate shall be
fixed solely on a regional basis or on the basis of age or sex. In
determining whether there should be classifications within an industry,
in making such classifications, and in determining the minimum wage rate
for each classification, the committee shall consider, among other
relevant factors, the following:
[[Page 95]]
(1) Competitive conditions as affected by transportation, living and
production costs;
(2) The wages established for work of like or comparable character
by collective labor agreements negotiated between employers and
employees by representatives of their own choosing; and
(3) The wages paid for work of like or comparable character by
employers who voluntarily maintain minimum wage standards in the
industry.
[55 FR 53298, Dec. 28, 1990]
Sec. 511.11 Pertinent data.
Among the types of data which may be considered pertinent to the
subjects and issues delineated in Sec. 511.10, are those revealing:
(a) Employment and labor conditions and trends in American Samoa,
and on the mainland, particularly since the promulgation of the
presently applicable wage order, including such items as present and
past employment, present wage rates and fringe benefits, changes in
average hourly earnings or wage structure, provisions of collective
bargaining agreements, hours of work, labor turnover, absenteeism,
productivity, learning periods, rejection rates, and similar factors;
(b) Market conditions and trends in American Samoa, and on the
mainland, including changes in the volume and value of production,
market outlets, price changes, style factors, consumer demand,
competitive relationships, tariff rates, and similar marketing factors;
(c) Comparative production costs in American Samoa, on the mainland,
and in foreign countries, together with the factors responsible for
differences;
(d) Financial conditions and trends since promulgation of the
present wage order as reflected in profit and loss statements and
balance sheets; and
(e) Data bearing on proper definitions of classifications within an
industry.
[55 FR 12120, Mar. 30, 1990]
Sec. 511.12 Committee and subcommittee meetings.
(a) The full committee, or a quorum thereof, will convene at the
time and place appointed for an initial prehearing meeting as provided
in the Secretary's order initiating the proceedings (note Sec. 511.2).
The full committee acting through a quorum will decide at that meeting
whether it will preside at the reception at the hearing or will
authorize a subcommittee to preside. Any resolution authorizing a
subcommittee to hold the hearing shall provide a period of 30 days
after:
(1) The subcommittee has filed its recommended report and
(2) A transcript of the subcommittee hearing is made available to
the parties, for the parties to file exceptions to the recommended
report, and the committee shall meet promptly thereafter on call of its
chairperson or the Administrator to consider exceptions and prepare its
final report.
(b) A committee may adjourn its meeting or hearing, or both, from
time to time, and meet again, at hearing or otherwise, pursuant to the
terms of adjournment, or on call of its chairperson or the
Administrator.
[55 FR 53299, Dec. 28, 1990]
Sec. 511.13 Evidence.
In accordance with the notice of hearing, the committee and any
authorized subcommittee will take official notice of the facts stated in
the economic report to the extent they are not refuted by evidence
received at the hearing. Other pertinent evidence available to the
Department of Labor may be presented at the hearing. The committee
itself may call witnesses not otherwise scheduled to testify. Oral or
documentary evidence may be received, but the committee shall exclude
irrelevant, immaterial, and unduly repetitious evidence. Every
interested person who has met the requirements for participation as a
party shall have the right to present his or her case by oral or
documentary evidence, to submit rebuttal evidence, and to conduct such
cross-examination of witnesses called by others as may be required for a
full and true disclosure of the facts. Testimony on behalf of an
employer or group of employers as to inability to pay the minimum wage
rate specified in paragraph (1) of section 6(a) of the Act, or as to
inability to adjust to a higher minimum wage rate than prescribed by any
applicable wage order of the Secretary, shall be
[[Page 96]]
supported by tangible objective data filed as part of the prehearing
statement under Sec. 511.8. Financial or other data shall include data
for the most recent year or fraction thereof for which data are
available. Financial statements filed in accordance with this provision,
except those relating to a period of less than a full fiscal year or a
fiscal year ending less than 90 days prior to the filing of the
prehearing statement, shall be certified by an independent public
accountant or shall be sworn to conform to and be consistent with the
corresponding income tax returns covering the same years. Evidence of
witnesses not present at the hearing may be submitted only by affidavits
received with, or as a part of, a prehearing statement that meets the
requirements of Sec. 511.8 and satisfactorily explains why each affiant
cannot be present. Such affidavits will be received in evidence to the
same extent that testimony from affiants would have been admitted had
they been present. The committee will give such weight to these
statements as it considers appropriate, and the fact that such affiants
have not been subject to cross-examination may be considered, along with
other relevant facts, in assessing the weight to be given such evidence.
[55 FR 53299, Dec. 28, 1990]
Sec. 511.14 Procedure for receiving evidence.
(a) All testimony shall be given under oath or affirmation. Any
party shall have the right to appear in person, by counsel, or by other
specified representative. Misconduct at any hearing shall be grounds for
summary exclusion from the hearing. The committee shall limit the
testimony of any witness where appropriate to prevent the hearing from
becoming unduly prolonged. The refusal of a witness to answer any
question which has been ruled to be proper shall, in the discretion of
the committee, be ground for striking all testimony given by the witness
on related matters.
(b) Unless otherwise directed by the committee, witnesses shall be
called in the following order: The committee economist qualified to
testify concerning the content and preparation of the economic report,
other witnesses called by the Department of Labor, witnesses called by
the parties, other witnesses. Unless otherwise directed by the
committee, all witnesses other than those called by the parties shall be
examined in the following order: By committee counsel, by committee
economist, by committee members, by the parties or their
representatives. Witnesses called by the parties shall be examined first
by the party calling them or by the party's specified representative,
and then in the order herein indicated for all other witnesses. Redirect
examination may be permitted at the discretion of the committee.
Rebuttal evidence may be offered in the order and manner in this section
provided for other evidence. To the extent not specified in this
section, the order for calling and examining witnesses shall be
specified by the chairperson of the committee or subcommittee.
[21 FR 7669, Oct. 6, 1956, as amended at 55 FR 53299, Dec. 28, 1990]
Sec. 511.15 Submittals prior to reports.
As soon as the receipt of evidence is concluded, a committee or
subcommittee presiding at a hearing shall receive any proposed findings
of fact and recommendations together with the reasons therefor submitted
by any party. These submittals shall be oral unless otherwise directed
by the committee or subcommittee. If, in the discretion of the committee
or subcommittee such proposals should be in writing, it may grant such
additional time as it deems essential.
Sec. 511.16 Reports.
Promptly after receipt of submissions under Sec. 511.15, the
committee or subcommittee will resolve the issues before it and prepare
a report containing its findings of fact and recommendations. The report
shall contain the committee's or the subcommittee's findings and
conclusions as well as the reasons or basis therefor upon all the
material issues of fact, law, or discretion presented on the record.
When a committee, acting through a quorum, has presided at the reception
of evidence, this report shall
[[Page 97]]
be its final report on the matters referred to it. Where, however, a
subcommittee has presided at the reception of evidence, this report
shall be an initial report, and the committee shall meet thereafter to
review the report and rule on exceptions in its final report. Where the
committee presides at the reception of evidence and proceeds to final
decision, every party shall be regarded as having objected to any wage
rate or classification at variance with any the party proposed in the
party's prehearing statements unless the party accepted such a rate or
classification in any submittal made pursuant to Sec. 511.15. A copy of
the report shall be signed by each member of the committee who approves
it, either at a meeting of the committee or by circulation of one or
more copies among the members of the committee. At any time within 3
days after the committee report is signed by those who approve it,
members dissenting therefrom may collectively or individually submit
signed reports stating the reasons for their dissent.
[55 FR 53299, Dec. 28, 1990]
Sec. 511.17 Records.
Each industry committee shall keep a journal recording the time and
place of all its meetings, the members present, the votes, and other
formal proceedings, including the appointment of subcommittees.
Subcommittees shall keep a similar journal. No report of committee or
subcommittee discussions need be included. All hearings shall be
recorded. The record of any hearing before any subcommittee shall be
transcribed. All hearings before a committee shall also be transcribed
in whole or in part whenever the Administrator so directs upon his or
her own motion or upon the motion of any party or any person compelled
to submit data or evidence and upon the payment of costs prescribed by
the Administrator. Promptly after completion of the committee's final
report, the committee chairperson shall certify the report and transmit
it to the Administrator. As soon as practicable thereafter, the
committee staff shall transmit to the Administrator:
(a) All committee and subcommittee journals;
(b) All applications for leave to participate as parties together
with the record of action thereon; and,
(c) The record, including any transcript of the testimony and
exhibits, together with all papers and requests filed in the
proceedings.
These documents shall be available for inspections and copying by
interested persons at the Office of the Administrator during usual
business hours.
[55 FR 53300, Dec. 28, 1990]
Sec. 511.18 Publication and effective date of wage order.
Promptly after receipt of the committee report the Administrator
shall publish the committee recommendations in the Federal Register and
shall provide by order that the recommendations contained in such report
shall take effect upon the expiration of 15 days after the date of such
publication.
Sec. 511.19 Petitions.
Any interested person may at any time file a petition with the
Administrator for an amendment to the regulations contained in this part
or for an amendment to a wage order applicable to that person. In view
of the statutory requirement that the minimum rates of wages established
by order under section 6 of the Act be reviewed by an industry committee
at least biennially, substantial cause must be shown in support of any
petition for an amendment of a wage order out of regular course. Any
interested person may also file a petition at any time with the
Administrator for a public hearing under section 13(e) of the Act to
determine whether economic conditions warrant rules or regulations
providing reasonable limitations or allowing reasonable variations,
tolerances, or exemptions to or from any or all of the provisions of
section 7 of the Act with respect to employees in American Samoa for
whom the Secretary of Labor has established minimum wage rates under
section 6(a)(3) of the Act and the regulations contained in this part.
Whenever it appears to the Secretary of Labor, by reason of such a
petition or otherwise, to be probable that such a hearing is likely to
reveal that economic conditions warrant such action,
[[Page 98]]
notice of such hearing specifying the procedure to be followed will be
published in the Federal Register.
[55 FR 53300, Dec. 28, 1990]
PART 515_UTILIZATION OF STATE AGENCIES FOR INVESTIGATIONS AND INSPECTIONS
--Table of Contents
Sec.
515.1 Definitions.
515.2 Agreements with State agencies.
515.3 Qualifications of the State agency.
515.4 Submission of plan.
515.5 Additional requirements.
515.6 Audits.
515.7 Transmission of official mail.
515.8 Enforcement.
515.9 Agreements and approved plans.
515.10 Amendments and repeal.
Authority: Sec. 4, 49 Stat. 2038, sec. 11(b), 52 Stat. 1066; 29
U.S.C. 211(b), 41 U.S.C. 38.
Source: 13 FR 2161, 2163, Apr. 22, 1948, unless otherwise noted.
Sec. 515.1 Definitions.
As used in this part:
(a) Acts. The term Acts means the Fair Labor Standards Act of 1938
(Act of June 25, 1938; Chapter 676, 52 Stat. 1060, 29 U.S.C. 201) and
the Public Contracts Act (Act of June 30, 1936; 49 Stat. 2036; 41 U.S.C.
35-45).
(b) Administrator. The term Administrator means the Administrator of
the Wage and Hour Division of the United States Department of Labor.
(c) Division. The term Division means the Wage and Hour Division of
the United States Department of Labor.
(d) State. The term State means any State of the United States or
the District of Columbia or any Territory or possession of the United
States.
(e) State agency. The term State agency means the agency in the
State charged with the administration of labor laws which necessitate
inspection of places of employment for (1) enforcement of State child-
labor regulations and (2) enforcement of State maximum-hour or State
minimum-wage regulations.
(f) Official forms. The term official forms means forms prescribed
by the Administrator or the Secretary of Labor.
Sec. 515.2 Agreements with State agencies.
(a) Purpose. The Secretary and the Administrator may enter into
agreements with State agencies for the utilization of services of State
and local agencies and their employees in making investigations and
inspections under the Acts and for reimbursement therefor, when such
State agencies have submitted plans of cooperation for such purposes and
such plans have been found to be reasonably appropriate and adequate to
carry out the respective functions of the Secretary and the
Administrator.
(b) Certificates of attorneys general. No such agreement shall
become effective and operative until a statement of the Attorney General
of the State, or, if the Attorney General is not authorized to make such
a statement, the State official who is so authorized, has been received
by the Division and the Secretary of Labor certifying that the agreement
is valid in the form as executed under the laws of the State.
Sec. 515.3 Qualifications of the State agency.
The State agency shall have as its primary function the
administration of State labor laws and shall be under the direction of
an executive who gives full time to the work of the agency. The agency
shall be engaged in inspecting places of employment for (a) enforcement
of State child-labor laws and regulations, and (b) enforcement of State
maximum hour or minimum-wage laws and regulations. An administrative
division of the State agency shall be designated to make investigations
and inspections under the Acts; qualified staff, under adequate
supervision, shall be specifically assigned for work connected with
State and Federal child-labor, maximum-hour and minimum-wage laws and
regulations; and provision shall be made to inspect any establishment
subject to the Acts.
Sec. 515.4 Submission of plan.
The State agency shall submit a plan, in quadruplicate, which shall
include the following:
(a) A copy of the Act establishing the State agency, copies of the
laws administered by the State agency, and if
[[Page 99]]
there is an act specifically authorizing the State to cooperate with the
Division or the Secretary of Labor, or both, a copy of such Act.
(b) A description of the organization of the State agency,
illustrated by organization charts, showing the delegation of
responsibility and lines of authority to be followed within the agency
in the enforcement of the act and State labor laws.
(c) A description: (1) Of the manner in which investigations and
inspections under the Acts will be coordinated with the investigations
and inspections for enforcement of State child-labor, maximum-hour and
minimum-wage laws and regulations; (2) of the location of offices of the
administrative division designated to make inspections under the Acts,
with the job titles of employees located in each such office and
employees assigned to work in connection with the Acts so designated;
and (3) of the manner in which the work of inspectors will be
supervised.
(d) Provisions for the establishment and maintenance of personnel
administration, with respect to personnel engaged in work under the Acts
for the Division and the Secretary of Labor in accordance with the
following standards:
(1) Job classifications based upon an analysis of the duties and
responsibilities of positions;
(2) A compensation schedule adjusted to State salary schedules for
similar positions: Provided, however, That all salaries paid by the
State for services rendered in accordance with an agreement entered into
pursuant to Sec. 515.2 shall be on the basis of applicable State laws
or regulations, or in the absence of such applicable laws or
regulations, on the approved and usual scale pair by the State for
similar services and shall in no case exceed salaries paid for
comparable Federal positions in the competitive classified service.
Allowances for necessary traveling expenses shall be on the basis of
State laws and regulations governing travel allowances;
(3) Assignment of personnel to Federal work only when their
qualifications conform substantially with qualifications of Federal
employees engaged in similar work, such assignment to be made only after
submission to and approval by the Division and the Secretary of Labor of
a statement of the training and experience of each person who will
engage in Federal work;
(4) Appointment of new personnel on the basis of merit, either (i)
from lists of eligible persons certified in the order of merit, secured
under a merit system through State-wide competitive examinations which
prescribe requirements of training and experience in substantial
conformity with Federal civil service requirements for similar positions
or (ii) from lists taken from Federal registers established through
competitive examinations for similar positions, it being understood that
such registers may be broken down by States;
(5) Adequate training of staff;
(6) Promotion on the basis of qualifications and performance;
(7) Security of tenure assured satisfactory employees, including
right of notice and hearing prior to demotion or dismissal;
(8) Prohibition against employees engaging in political activities
other than the exercise of their right to vote and to express privately
their opinions on political questions.
(e) A budget which shall show, in detail, estimated expenditures by
the State agency on behalf of the Division and the Secretary of Labor
for services to be rendered in connection with the administration of the
Acts and a budget which shall show estimated expenditure for the
enforcement of comparable State laws and regulations during the period
covered by the agreement; a statement showing funds appropriated to or
allocated for meeting the budget for estimated State expenditures; and a
statement showing expenditures by the State agency for the enforcement
of comparable State laws and regulations during the last fiscal year.
(f) A statement of State requirements in regard to fiscal practices
and to appointment of personnel, together with copies of the laws and
regulations setting forth such requirements.
(g) A statement from the Attorney General of the State or, if the
Attorney General is not authorized to make such a statement, from the
State official who is so authorized certifying that the State agency has
authority to
[[Page 100]]
enter into an Agreement with the Division and the Secretary of Labor in
accordance with this part.
Sec. 515.5 Additional requirements.
(a) The State Agency shall follow the procedure set forth in the
Inspection Manual for the enforcement of the act and such supplements to
or provisions thereof as may be issued from time to time by the Division
or the Secretary of Labor; use official forms for recording findings;
make reports as required; and carry on the work connected with the
administration of the Acts in conformity with the plans and budget
agreed upon and with the instructions and policies of the Division and
the Secretary of Labor.
(b) Representatives of the Division and the Secretary of Labor may
at any time, upon notifying the State agency, make such inspections and
investigations and secure such information as may be necessary for the
administration of the Acts.
Sec. 515.6 Audits.
The accounting records and the supporting data pertaining to
expenditures for investigations and inspections under the Acts shall be
subject to audit by the Division and the Secretary of Labor, annually,
or so often as the Administrator and the Secretary of Labor, may
require.
Sec. 515.7 Transmission of official mail.
Subject to the requirements of law and of the regulations of the
Post Office Department, franked self-addressed envelopes may be used for
communications from the field staff to a State official designated by
the Division and the Secretary of Labor, and for communication from the
State agency to the Division or the Secretary of Labor.
Sec. 515.8 Enforcement.
All litigation relating to the enforcement of the Acts, other than
civil actions for the recovery of wages due instituted pursuant to
section 16(b) of the Fair Labor Standards Act of 1938 and all
administrative proceedings instituted pursuant to section 5 of the
Public Contracts Act shall be undertaken by and be under the direction
and control of the Federal Government. Any State agency intending to
institute a civil action in behalf of an employee or employees for the
recovery of wages due, pursuant to section 16(b) of the Fair Labor
Standards Act of 1938 shall notify the Division and the Secretary of
Labor prior to the institution of such action.
Sec. 515.9 Agreements and approved plans.
Agreements and approved plans incorporated therein may be amended
upon the consent of the parties thereto.
Sec. 515.10 Amendments and repeal.
This part may be amended or repealed by appropriate joint
regulations issued by the Secretary of Labor and the Administrator:
Provided, however, That no such amendment or repeal shall be effective
as to any agreement previously entered into by a State agency without
its consent thereto.
PART 516_RECORDS TO BE KEPT BY EMPLOYERS--Table of Contents
Introductory
Sec.
516.0 Display of OMB control numbers.
516.1 Form of records; scope of regulations.
Subpart A_General Requirements
516.2 Employees subject to minimum wage or minimum wage and overtime
provisions pursuant to section 6 or sections 6 and 7(a) of the
Act.
516.3 Bona fide executive, administrative, and professional employees
(including academic administrative personnel and teachers in
elementary or secondary schools), and outside sales employees
employed pursuant to section 13(a)(1) of the Act.
516.4 Posting of notices.
516.5 Records to be preserved 3 years.
516.6 Records to be preserved 2 years.
516.7 Place for keeping records and their availability for inspection.
516.8 Computations and reports.
516.9 Petitions for exceptions.
[[Page 101]]
516.10 [Reserved]
Subpart B_Records Pertaining to Employees Subject to Miscellaneous
Exemptions Under the Act; Other Special Requirements
516.11 Employees exempt from both minimum wage and overtime pay
requirements under section 13(a) (2), (3), (4), (5), (8),
(10), (12) or 13(d) of the Act.
516.12 Employees exempt from overtime pay requirements pursuant to
section 13(b) (1), (2), (3), (5), (9), (10), (15), (16), (17),
(20), (21), (24), (27) or (28) of the Act.
516.13 Livestock auction employees exempt from overtime pay requirements
under section 13(b)(13) of the Act.
516.14 Country elevator employees exempt from overtime pay requirements
under section 13(b)(14) of the Act.
516.15 Local delivery employees exempt from overtime pay requirements
pursuant to section 13(b)(11) of the Act.
516.16 Commission employees of a retail or service establishment exempt
from overtime pay requirements pursuant to section 7(i) of the
Act.
516.17 Seamen exempt from overtime pay requirements pursuant to section
13(b)(6) of the Act.
516.18 Employees employed in certain tobacco, cotton, sugar cane or
sugar beet services, who are partially exempt from overtime
pay requirements pursuant to section 7(m), 13(h), 13(i) or
13(j) of the Act.
516.19 [Reserved]
516.20 Employees under certain collective bargaining agreements who are
partially exempt from overtime pay requirements as provided in
section 7(b)(1) or section 7(b)(2) of the Act.
516.21 Bulk petroleum employees partially exempt from overtime pay
requirements pursuant to section 7(b)(3) of the Act.
516.22 Employees engaged in charter activities of carriers pursuant to
section 7(n) of the Act.
516.23 Employees of hospitals and residential care facilities
compensated for overtime work on the basis of a 14-day work
period pursuant to section 7(j) of the Act.
516.24 Employees employed under section 7(f) ``Belo'' contracts.
516.25 Employees paid for overtime on the basis of ``applicable'' rates
provided in sections 7(g)(1) and 7(g)(2) of the Act.
516.26 Employees paid for overtime at premium rates computed on a
``basic'' rate authorized in accordance with section 7(g)(3)
of the Act.
516.27 ``Board, lodging, or other facilities'' under section 3(m) of the
Act.
516.28 Tipped employees.
516.29 Employees employed by a private entity operating an amusement or
recreational establishment located in a national park or
national forest or on land in the National Wildlife Refuge
System who are partially exempt from overtime pay requirements
pursuant to section 13(b)(29) of the Act.
516.30 Learners, apprentices, messengers, students, or handicapped
workers employed under special certificates as provided in
section 14 of the Act.
516.31 Industrial homeworkers.
516.32 [Reserved]
516.33 Employees employed in agriculture pursuant to section 13(a)(6) or
13(b)(12) of the Act.
516.34 Exemption from overtime pay for time spent by certain employees
receiving remedial education pursuant to section 7(q) of the
Act.
Authority: Sec. 11, 52 Stat. 1066, as amended, 29 U.S.C. 211.
Section 516.33 also issued under 52 Stat. 1060, as amended; 29 U.S.C.
201 et seq. Section 516.34 also issued under Sec. 7, 103 Stat. 944, 29
U.S.C. 207(q).
Source: 52 FR 24896, July 1, 1987, unless otherwise noted.
Introductory
Sec. 516.0 Display of OMB control numbers.
------------------------------------------------------------------------
Currently
Subpart or section where information collection requirement assigned
is located OMB control
No.
------------------------------------------------------------------------
Subpart A (except 516.8)................................... 1215.0017
516.8...................................................... 1215.0006
Subpart B (except 516.31).................................. 1215.0017
516.31..................................................... 1215.0013
516.34..................................................... 1215.0175
------------------------------------------------------------------------
[52 FR 24896, July 1, 1987, as amended at 71 FR 16665, Apr. 3, 2006]
Sec. 516.1 Form of records; scope of regulations.
(a) Form of records. No particular order or form of records is
prescribed by the regulations in this part. However, every employer
subject to any provisions of the Fair Labor Standards Act of 1938, as
amended (hereinafter referred to as the ``Act''), is required to
maintain records containing the information and data required by the
specific sections of this part. The records may be maintained and
preserved on microfilm or other basic source document of an automatic
word or data processing memory provided that adequate projection or
viewing equipment is available, that the reproductions are clear and
identifiable by date or pay
[[Page 102]]
period and that extensions or transcriptions of the information required
by this part are made available upon request.
(b) Scope of regulations. The regulations in this part are divided
into two subparts.
(1) Subpart A of this part contains the requirements generally
applicable to all employers employing covered employees, including the
requirements relating to the posting of notices, the preservation and
location of records, and the recordkeeping requirements for employers of
employees to whom both the minimum wage provisions of section 6 or the
minimum wage provisions of section 6 and the overtime pay provisions of
section 7(a) of the Act apply. In addition, Sec. 516.3 contains the
requirements relating to executive, administrative, and professional
employees (including academic administrative personnel or teachers in
elementary or secondary schools), and outside sales employees.
(2) Subpart B of this part deals with the information and data which
must be kept for employees (other than executive, administrative, etc.,
employees) who are subject to any of the exemptions provided in the Act.
This section also specifies the records needed for deductions from and
additions to wages for ``board, lodging, or other facilities,''
industrial homeworkers and employees whose tips are credited toward
wages. The sections in subpart B of this part require the recording of
more, less, or different items of information or data than required
under the generally applicable recordkeeping requirements of subpart A.
(c) Relationship to other recordkeeping and reporting requirements.
Nothing in 29 CFR part 516 shall excuse any party from complying with
any recordkeeping or reporting requirement imposed by any other Federal,
State or local law, ordinance, regulation or rule.
Subpart A_General Requirements
Sec. 516.2 Employees subject to minimum wage or minimum wage and
overtime provisions pursuant to section 6 or sections 6 and 7(a) of
the Act.
(a) Items required. Every employer shall maintain and preserve
payroll or other records containing the following information and data
with respect to each employee to whom section 6 or both sections 6 and
7(a) of the Act apply:
(1) Name in full, as used for Social Security recordkeeping
purposes, and on the same record, the employee's identifying symbol or
number if such is used in place of name on any time, work, or payroll
records,
(2) Home address, including zip code,
(3) Date of birth, if under 19,
(4) Sex and occupation in which employed (sex may be indicated by
use of the prefixes Mr., Mrs., Miss., or Ms.) (Employee's sex
identification is related to the equal pay provisions of the Act which
are administered by the Equal Employment Opportunity Commission. Other
equal pay recordkeeping requirements are contained in 29 CFR part 1620.)
(5) Time of day and day of week on which the employee's workweek
begins (or for employees employed under section 7(k) of the Act, the
starting time and length of each employee's work period). If the
employee is part of a workforce or employed in or by an establishment
all of whose workers have a workweek beginning at the same time on the
same day, a single notation of the time of the day and beginning day of
the workweek for the whole workforce or establishment will suffice,
(6)(i) Regular hourly rate of pay for any workweek in which overtime
compensation is due under section 7(a) of the Act, (ii) explain basis of
pay by indicating the monetary amount paid on a per hour, per day, per
week, per piece, commission on sales, or other basis, and (iii) the
amount and nature of each payment which, pursuant to section 7(e) of the
Act, is excluded from the ``regular rate'' (these records may be in the
form of vouchers or other payment data),
(7) Hours worked each workday and total hours worked each workweek
(for
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purposes of this section, a ``workday'' is any fixed period of 24
consecutive hours and a ``workweek'' is any fixed and regularly
recurring period of 7 consecutive workdays),
(8) Total daily or weekly straight-time earnings or wages due for
hours worked during the workday or workweek, exclusive of premium
overtime compensation,
(9) Total premium pay for overtime hours. This amount excludes the
straight-time earnings for overtime hours recorded under paragraph
(a)(8) of this section,
(10) Total additions to or deductions from wages paid each pay
period including employee purchase orders or wage assignments. Also, in
individual employee records, the dates, amounts, and nature of the items
which make up the total additions and deductions,
(11) Total wages paid each pay period,
(12) Date of payment and the pay period covered by payment.
(b) Records of retroactive payment of wages. Every employer who
makes retroactive payment of wages or compensation under the supervision
of the Administrator of the Wage and Hour Division pursuant to section
16(c) and/or section 17 of the Act, shall:
(1) Record and preserve, as an entry on the pay records, the amount
of such payment to each employee, the period covered by such payment,
and the date of payment.
(2) Prepare a report of each such payment on a receipt form provided
by or authorized by the Wage and Hour Division, and (i) preserve a copy
as part of the records, (ii) deliver a copy to the employee, and (iii)
file the original, as evidence of payment by the employer and receipt by
the employee, with the Administrator or an authorized representative
within 10 days after payment is made.
(c) Employees working on fixed schedules. With respect to employees
working on fixed schedules, an employer may maintain records showing
instead of the hours worked each day and each workweek as required by
paragraph (a)(7) of this section, the schedule of daily and weekly hours
the employee normally works. Also,
(1) In weeks in which an employee adheres to this schedule,
indicates by check mark, statement or other method that such hours were
in fact actually worked by him, and
(2) In weeks in which more or less than the scheduled hours are
worked, shows that exact number of hours worked each day and each week.
Sec. 516.3 Bona fide executive, administrative, and professional employees
(including academic administrative personnel and teachers in elementary or
secondary schools), and outside sales employees employed pursuant to section
13(a)(1) of the Act.
With respect to each employee in a bona fide executive,
administrative, or professional capacity (including employees employed
in the capacity of academic administrative personnel or teachers in
elementary or secondary schools), or in outside sales, as defined in
part 541 of this chapter (pertaining to so-called ``white collar''
employee exemptions), employers shall maintain and preserve records
containing all the information and data required by Sec. 516.2(a)
except paragraphs (a) (6) through (10) and, in addition, the basis on
which wages are paid in sufficient detail to permit calculation for each
pay period of the employee's total remuneration for employment including
fringe benefits and prerequisites. (This may be shown as the dollar
amount of earnings per month, per week, per month plus commissions, etc.
with appropriate addenda such as ``plus hospitalization and insurance
plan A,'' ``benefit package B,'' ``2 weeks paid vacation,'' etc.)
Sec. 516.4 Posting of notices.
Every employer employing any employees subject to the Act's minimum
wage provisions shall post and keep posted a notice explaining the Act,
as prescribed by the Wage and Hour Division, in conspicuous places in
every establishment where such employees are employed so as to permit
them to observe readily a copy. Any employer of employees to whom
section 7 of the Act does not apply because of an exemption of broad
application to an establishment may alter or modify the poster with a
legible notation to show that the overtime provisions do not apply. For
example:
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Overtime Provisions Not Applicable to Taxicab Drivers (section
13(b)(17)).
Sec. 516.5 Records to be preserved 3 years.
Each employer shall preserve for at least 3 years:
(a) Payroll records. From the last date of entry, all payroll or
other records containing the employee information and data required
under any of the applicable sections of this part, and
(b) Certificates, agreements, plans, notices, etc. From their last
effective date, all written:
(1) Collective bargaining agreements relied upon for the exclusion
of certain costs under section 3(m) of the Act,
(2) Collective bargaining agreements, under section 7(b)(1) or
7(b)(2) of the Act, and any amendments or additions thereto,
(3) Plans, trusts, employment contracts, and collective bargaining
agreements under section 7(e) of the Act,
(4) Individual contracts or collective bargaining agreements under
section 7(f) of the Act. Where such contracts or agreements are not in
writing, a written memorandum summarizing the terms of each such
contract or agreement,
(5) Written agreements or memoranda summarizing the terms of oral
agreements or understandings under section 7(g) or 7(j) of the Act, and
(6) Certificates and notices listed or named in any applicable
section of this part.
(c) Sales and purchase records. A record of (1) total dollar volume
of sales or business, and (2) total volume of goods purchased or
received during such periods (weekly, monthly, quarterly, etc.), in such
form as the employer maintains records in the ordinary course of
business.
Sec. 516.6 Records to be preserved 2 years.
(a) Supplementary basic records: Each employer required to maintain
records under this part shall preserve for a period of at least 2 years.
(1) Basic employment and earnings records. From the date of last
entry, all basic time and earning cards or sheets on which are entered
the daily starting and stopping time of individual employees, or of
separate work forces, or the amounts of work accomplished by individual
employees on a daily, weekly, or pay period basis (for example, units
produced) when those amounts determine in whole or in part the pay
period earnings or wages of those employees.
(2) Wage rate tables. From their last effective date, all tables or
schedules of the employer which provide the piece rates or other rates
used in computing straight-time earnings, wages, or salary, or overtime
pay computation.
(b) Order, shipping, and billing records: From the last date of
entry, the originals or true copies of all customer orders or invoices
received, incoming or outgoing shipping or delivery records, as well as
all bills of lading and all billings to customers (not including
individual sales slips, cash register tapes or the like) which the
employer retains or makes in the usual course of business operations.
(c) Records of additions to or deductions from wages paid:
(1) Those records relating to individual employees referred to in
Sec. 516.2(a)(10) and
(2) All records used by the employer in determining the original
cost, operating and maintenance cost, and depreciation and interest
charges, if such costs and charges are involved in the additions to or
deductions from wages paid.
Sec. 516.7 Place for keeping records and their availability for
inspection.
(a) Place of records. Each employer shall keep the records required
by this part safe and accessible at the place or places of employment,
or at one or more established central recordkeeping offices where such
records are customarily maintained. Where the records are maintained at
a central recordkeeping office, other than in the place or places of
employment, such records shall be made available within 72 hours
following notice from the Administrator or a duly authorized and
designated representative.
(b) Inspection of records. All records shall be available for
inspection and transcription by the Administrator or a duly authorized
and designated representative.
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Sec. 516.8 Computations and reports.
Each employer required to maintain records under this part shall
make such extension, recomputation, or transcription of the records and
shall submit to the Wage and Hour Division such reports concerning
persons employed and the wages, hours, and other conditions and
practices of employment set forth in the records as the Administrator or
a duly authorized and designated representative may request in writing.
Sec. 516.9 Petitions for exceptions.
(a) Submission of petitions for relief. Any employer or group of
employers who, due to peculiar conditions under which they must operate,
desire authority to maintain records in a manner other than required in
this part, or to be relieved of preserving certain records for the
period specified in this part, may submit a written petition to the
Administrator requesting such authority, setting forth the reasons
therefor.
(b) Action on petitions. If, after review of the petition, the
Administrator finds that the authority requested will not hinder
enforcement of the Act, the Administrator may grant such authority
limited by any conditions determined necessary and subject to subsequent
revocation. Prior to revocation of such authority because of
noncompliance with any of the prescribed conditions, the employer will
be notified of the reasons and given an opportunity to come into
compliance.
(c) Compliance after submission of petitions. The submission of a
petition or the delay of the Administrator in acting upon such petition
will not relieve any employer or group of employers from any obligations
to comply with all the applicable requirements of the regulations in
this part. However, the Administrator will provide a response to all
petitions as soon as possible.
Sec. 516.10 [Reserved]
Subpart B_Records Pertaining to Employees Subject to Miscellaneous
Exemptions Under the Act; Other Special Requirements
Sec. 516.11 Employees exempt from both minimum wage and overtime pay
requirements under section 13(a) (2), (3), (4), (5), (8), (10), (12),
or 13(d) of the Act.
With respect to each and every employee exempt from both the minimum
wage and overtime pay requirements of the Act pursuant to the provisions
of section 13(a) (2), (3), (4), (5), (8), (10), (12), or 13(d) of the
Act, employers shall maintain and preserve records containing the
information and data required by Sec. 516.2(a) (1) through (4).
Sec. 516.12 Employees exempt from overtime pay requirements pursuant
to section 13(b) (1), (2), (3), (5), (9), (10), (15), (16), (17), (20),
(21), (24), (27), or (28) of the Act.
With respect to each employee exempt from the overtime pay
requirements of the Act pursuant to the provisions of section 13(b) (1),
(2), (3), (5), (9), (10), (15), (16), (17), (20), (21), (24), (27), or
(28) of the Act, shall maintain and preserve payroll or other records,
containing all the information and data required by Sec. 516.2(a)
except paragraphs (a) (6) and (9) and, in addition, information and data
regarding the basis on which wages are paid (such as the monetary amount
paid, expressed as earnings per hour, per day, per week, etc.).
Sec. 516.13 Livestock auction employees exempt from overtime pay
requirements under section 13(b)(13) of the Act.
With respect to each employee exempt from the overtime pay
requirements of the Act pursuant to section 13(b)(13), the employer
shall maintain and preserve records containing the information and data
required by Sec. 516.2(a) except paragraphs (a) (6) and (9) and, in
addition, for each workweek in which the employee is employed both in
agriculture and in connection with livestock auction operations:
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(a) The total number of hours worked by each such employee,
(b) The total number of hours in which the employee was employed in
agriculture and the total number of hours employed in connection with
livestock auction operations, and
(c) The total straight-time earnings for employment in livestock
auction operations.
Sec. 516.14 Country elevator employees exempt from overtime pay
requirements under section 13(b)(14) of the Act.
(a) With respect to each employee exempt from the overtime pay
requirements of the Act pursuant to section 13(b)(14), the employer
shall maintain and preserve records containing the information and data
required by Sec. 516.2(a) except paragraphs (a) (6) and (9) and, in
addition, for each workweek, the names and occupations of all persons
employed in the country elevator, whether or not covered by the Act, and
(b) Information demonstrating that the ``area of production''
requirements of part 536 of this chapter are met.
Sec. 516.15 Local delivery employees exempt from overtime pay
requirements pursuant to section 13(b)(11) of the Act.
With respect to each employee exempt from the overtime pay
requirements of the Act pursuant to section 13(b)(11), the employer
shall maintain and preserve payroll or other records, containing all the
information and data required by Sec. 516.2(a) except paragraphs (a)
(6) and (9) and, in addition, information and data regarding the basis
on which wages are paid (such as the dollar amount paid per trip; the
dollar amount of earnings per week plus 3 percent commission on all
cases delivered). Records shall also contain the following information:
(a) A copy of the Administrator's finding under part 551 of this
chapter with respect to the plan under which such employees are
compensated;
(b) A statement or description of any changes made in the trip rate
or other delivery payment plan of compensation for such employees since
its submission for such finding;
(c) Identification of each employee employed pursuant to such plan
and the work assignments and duties; and
(d) A computation for each quarter-year of the average weekly hours
of full-time employees employed under the plan during the most recent
representative annual period as described in Sec. 551.8(g) (1) and (2)
of this chapter.
Sec. 516.16 Commission employees of a retail or service establishment
exempt from overtime pay requirements pursuant to section 7(i) of the Act.
With respect to each employee of a retail or service establishment
exempt from the overtime pay requirements of the Act pursuant to the
provisions of section 7(i), employers shall maintain and preserve
payroll and other records containing all the information and data
required by Sec. 516.2(a) except paragraphs (a) (6), (8), (9), and
(11), and in addition:
(a) A symbol, letter or other notation placed on the payroll records
identifying each employee who is paid pursuant to section 7(i).
(b) A copy of the agreement or understanding under which section
7(i) is utilized or, if such agreement or understanding is not in
writing, a memorandum summarizing its terms including the basis of
compensation, the applicable representative period and the date the
agreement was entered into and how long it remains in effect. Such
agreements or understandings, or summaries may be individually or
collectively drawn up.
(c) Total compensation paid to each employee each pay period
(showing separately the amount of commissions and the amount of
noncommission straight-time earnings).
Sec. 516.17 Seamen exempt from overtime pay requirements pursuant to
section 13(b)(6) of the Act.
With respect to each employee employed as a seaman and exempt from
the overtime pay requirements of the Act pursuant to section 13(b)(6),
the employer shall maintain and preserve payroll or other records,
containing all the information required by Sec. 516.2(a) except
paragraphs (a) (5) through (9) and, in addition, the following:
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(a) Basis on which wages are paid (such as the dollar amount paid
per hour, per day, per month, etc.)
(b) Hours worked each workday and total hours worked each pay period
(for purposes of this section, a ``workday'' shall be any fixed period
of 24 consecutive hours; the ``pay period'' shall be the period covered
by the wage payment, as provided in section 6(a)(4) of the Act),
(c) Total straight-time earnings or wages for each such pay period,
and
(d) The name, type, and documentation, registry number, or other
identification of the vessel or vessels upon which employed.
Sec. 516.18 Employees employed in certain tobacco, cotton, sugar cane
or sugar beet services, who are partially exempt from overtime pay
requirements pursuant to section 7(m), 13(h), 13(i) or 13(j) of the Act.
With respect to each employee providing services in connection with
certain types of green leaf or cigar leaf tobacco, cotton, cottonseed,
cotton ginning, sugar cane, sugar processing or sugar beets who are
partially exempt from the overtime pay requirements of the Act pursuant
to 7(m), 13(h), 13(i) or 13(j), the employer shall, in addition to the
records required in Sec. 516.2, maintain and preserve a record of the
daily and weekly overtime compensation paid. Also, the employer shall
note in the payroll records the beginning date of each workweek during
which the establishment operates under the particular exemption.
Sec. 516.19 [Reserved]
Sec. 516.20 Employees under certain collective bargaining agreements
who are partially exempt from overtime pay requirements as provided in
section 7(b)(1) or section 7(b)(2) of the Act.
(a) The employer shall maintain and preserve all the information and
data required by Sec. 516.2 and shall record daily as well as weekly
overtime compensation for each employee employed:
(1) Pursuant to an agreement, made as a result of collective
bargaining by representatives of employees certified as bona fide by the
National Labor Relations Board, which provides that no employees shall
be employed more than 1,040 hours during any period of 26 consecutive
weeks as provided in section 7(b)(1) of the Act, or
(2) Pursuant to an agreement, made as a result of collective
bargaining by representatives of employees certified as bona fide by the
National Labor Relations Board, which provides that the employee shall
be employed not more than 2,240 hours during a specified period of 52
consecutive weeks and shall be guaranteed employment as provided in
section 7(b)(2) of the Act.
(b) The employer shall also keep copies of such collective
bargaining agreement and such National Labor Relations Board
certification as part of the records and shall keep a copy of each
amendment or addition thereto.
(c) The employer shall also make and preserve a record, either
separately or as a part of the payroll:
(1) Listing each employee employed pursuant to each such collective
bargaining agreement and each amendment and addition thereto.
(2) Indicating the period or periods during which the employee has
been or is employed pursuant to an agreement under section 7(b)(1) or
7(b)(2) of the Act, and
(3) Showing the total hours worked during any period of 26
consecutive weeks, if the employee is employed in accordance with
section 7(b)(1) of the Act, or during the specified period of 52
consecutive weeks, if employed in accordance with section 7(b)(2) of the
Act.