wage index

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Wage and Hour Division, Labor Pt. 530

530.7 Revocati on and cancellati on of individual homeworker cert ifi cates.

530.8 P reservat ion of indivi dualhomeworker cert ifi cates.

530.9 Records and report s.530.10 Delegation of authority to grant,

deny, or cancel an individualhomeworker certi ficate.

530.11 P eti ti on for review.530.12 Special provi sions.

Subpart B Homeworker EmployerCertificates

530.101 General .530.102 Requests for employer cert i fi cates.530.103 E mpl oyer assurances.530.104 Bonding or secur ity payment s.530.105 Invest igations.

Subpart CDenial/Revocation ofHomeworker Employer Certificates

530.201 Confl ict wi th State law.530.202 P iece rateswork measurement.530.203 Outstandi ng violat ions and open in

vestigations.530.204 Di screti onary denial or revocation.530.205 Mandatory denial or revocat ion.530.206 Special ci rcumstances.

Subpart DCivil Money Penalties

530.301 General .530.302 Amount s of civi l money penalt ies.

530.303 Considerations in determiningamounts.

530.304 P rocedures for assessment .

Subpart EAdministrative Procedures

530.401 Appli cabil i ty of procedures andrules.

530.402 Not ice of determinat ion.530.403 Request for heari ng.530.404 Referral to Admini strati ve L aw

J udge.530.405 General .530.406 Decisi on and order of Administ rat ive

L aw J udge.PART 530EMPLOYMENT OF 530.407 P rocedures for i ni ti ati ng and under-

HOMEWORKERS IN CERTAIN IN- taking review.DUSTRIES 530.408 Not ice of the Secretary t o review de

cision.

530.409 F inal decision of the Secretary.Subpart AGeneral 530.410 Special procedures.

Sec.530.411 E mergency cert i fi cate revocat ion

530.1 Defi ni t ions.procedures.

530.2 Restr ict ion of homework.530.412 A l ternat ive summar y proceedings.530.413 Cert i fi cat ion of the record.

530.3 Applicati on for ms for indivi dual530.414 E qual Access to J usti ce Act.

homeworker cert ifi cates.530.4 T erms and condit ions for the issuance AUTHORITY : Sec. 11, 52 St at . 1066 (29 U.S .C.

of indivi dual homework er cert ifi cates. 211) as amended by sec. 9, 63 Stat . 910 (29530.5 I nvesti gati on. U.S.C. 211(d)); Secretarys Order No. 684, 49530.6 T ermi nat ion of individual F R 32473, August 14, 1984; and Employment

homeworker certi fi cates. St andards Order No. 8501, J une 5, 1985.

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530.1

SOURCE: 24 F R 729, F eb. 3, 1959, un less otherwise noted.

Subpart AGeneral

530.1 Definitions.

(a) The meaning of t he terms person,employ, employer, employee, goods,and production, as used in this part, isthe same as in the F air L abor St andards Act of 1938, as amended.

(b) Administrator as used in this partmeans the Administrator of the Wageand Hour Division, Employment Stand

ards Administration, U.S. Departmentof L abor, or an authori zed representati ve of t he Administr ator.

(c) Industrial homeworker andhomeworker, as used in this part, meanany employee employed or suffered orpermitted to perform industrial home-work for an employer.

(d) Industrial homework, as used inthis part, means the production by anyperson in or about a home, apartment,tenement, or room in a residential establishment of goods for an employerwho suffers or permits such production,regardless of the source (whether obtained from an employer or elsewhere)of the materials used by the

homeworker in such production.(e) The womens apparel industry is

defined as follows: The producti on ofwomens, misses and juniors dresses,washable service garments, blouses,and neckwear from woven or purchasedknit fabric; womens, misses, childrens and infants underwear, night-wear, and negligees from woven fabrics;corsets and other body supporting garments from any material; other garments simi lar to t he foregoing; and infants; and childrens outerwear.

(f) The jewelry manufacturi ng industry is defined as follows:

(1)(i) T he manufacturi ng, processing,or assembling, wholly or partially from

any material, of jewelry, commonly orcommercial ly so known. J ewelry asused herein includes without limitation, religious, school, college, and fraternal insignia; articles of ornament oradornment designed to be worn on apparel or carried on or about the person,including, without limitation, cigarand cigarette cases, holders, and lighters; watch cases; metal mesh bags andmetal watch bracelets; and chain,

29 CFR Ch. V (7102 Edition)

mesh, and parts for use in the manufacture of any of the articles included inthi s defini ti on. J ewelr y as used in thispart does not include pocket knives,cigar cutters, badges, emblems, military and naval insignia, belt buckles,and handbag and pocketbook fr amesand clasps, or commercial compactsand vanity cases, except when madefrom or embellished with precious metals or precious, semiprecious, syntheticor imitation stones, or the assaying,refining, and smelting of base or precious metals.

(ii) The term parts as used in para-graph (e)(1)(i) of this section does notinclude parts which are used predominantly for products other than j ewelr y,such as springs, blades, and nail files.The term commercial compacts and vanity cases as used means compacts andvanit y cases which bear t he trade nameor mark of a cosmetic manufacturerand are made for the purpose of dist ri buting or advertising said cosmetics.

(2) T he manufactur ing, cutt ing, polishing, encrusting, engraving, and setting of precious, semiprecious, syntheti c, and imit ation stones.

(3) T he manufacturing, dri ll ing, andstringing of pearls, imitation pearls,

and beads designed for use in t he manufacture of jewelry.

(4) T he term hand-fashioned jewelry asused in 530.12(b) means ar ticles of jewelry commonly known as genuine Navajo, P ueblo, Hopi, or Zuni handmadejewelry which i n al l elements of design,fashioning and ornamentation arehandmade by methods and with thehelp of only such devices as permit themaker to determine the shape and de-sign of each individual product: Provided,That sil ver used in the making ofsuch jewelry shall be of at least ninehundred fineness, and that turquoiseand other stones used shall be genuinestones, uncolored and untreated by ar

tificial means: And provided further,That power machinery is permitted i nthe production of findings, in the cutting and polishing of stones, in thebuffing and polishing of completedproducts, and in incidental functions.Equipment specifi cally prohibited shallinclude hand presses, foot presses, drophammers, and similar equipment: And

provided further,That solder may be ofless silver content than nine hundred;

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Wage and Hour Division, Labor

And provided further,That fi ndings maybe mechanically made of any metal byIndians or others: And provided further,That turquoi se and other stones maybe cut and poli shed by Indians or others without restrictions as to methodsor equipment used.

(g) The knit ted outerwear industry isdefined as follows: The knit ti ng fromany yarn or mixture of yarns and thefurther manufacturi ng, dyeing or otherfinishing of knitted garments, knittedgarment sections, or knitted garmentaccessories for use as external apparel

or coveri ng which are parti all y or completely manufactured in the same establishment as that where the knittingprocess is performed; and the manufacture of bathing suits from any purchased fabric: Provided,That the manufacturing, dyeing or other finishing ofthe following shall not be included:

(1) Kni tt ed fabric, as dist inguishedfrom garment sections or garments, forsale as such.

(2) Full ed suit ings, coatings,topcoati ngs, and overcoati ngs.

(3) Garments or garment accessoriesmade from purchased fabric, exceptbathi ng suit s.

(4) Gloves or mittens.

(5) Hosiery.(6) Kni tt ed garments or garment ac

cessori es for use as underwear, sleepingwear, or negligees.

(7) F leece-l ined garments made fromknitted fabric containing cotton onlyor containing any mixture of cottonand not more than 25 percent, byweight, of wool or animal fiber otherthan silk.

(8) Knit ted shir ts of cotton or anysynthetic fiber or any mixture of suchfibers which have been knit on machinery of 10-cut or f ine: Provided,That thisexception shall not be construed to exclude from the knitted outerwear industry and the manufacturing, dyeing,

or other finishing of knitted shirtsmade in the same establishment asthat where the knitting process is per-formed, if such shirts are made whollyor in part of fibers other than thosespecified in this clause, or if suchshirts of any fiber are knit on machinery coarser than 10-cut.

(h) The gloves and mit tens industryis defined as follows: The producti on ofgloves and mittens from any material

530.2

or combination of materials, exceptathleti c gloves and mit tens.

(i) T he butt on and buck le manufacturing industry is defined as follows:The manufacture of buttons, buck les,and slides, and the manufacture ofblanks and parts for such arti cles fromany material except metal, for use onapparel.

(j) T he handkerchief manufacturingindustry i s defined as foll ows: Themanufacture of mens, womens andchildrens handkerchiefs, plain or ornamented, from any materials.

(k) The embroideri es industry i s de-fined as foll ows: The production of allk inds of hand and machine-madeembroideries and ornamentalstitchings, including but not by way oflimitation, tucking shirri ng, smocking,hemstitching, hand rolling, fagoting,Bonnez embroidery, appliqueing, crochet beading, hand drawing, machinedrawing, rhinestone trimming, sequintrimming, spangle trimming, eyelets,passementerie, pleating, the application of rhinestones and nailheads,stamping and perforating of designs,Schifl i embroidery and laces, burnt -outlaces and velvets, Swiss handmachineembroidery, thread splitting, embroi

dery thread cutting, scallop cutting,lace cutting, lace making-up, making-up of embroidered yard goods, straightcutting of embroidery and cutting outof embroidery, embroidery trimmings,bindings (not made in textile establishments), pipings and emblems: Provided,That (1) the foregoing when producedor performed by a manufacturer of agarment, fabric or other art icl e for useon such garment, fabric or other article, and (2) the manufacture of coveredbuttons and buckles, shall not be included.

(l) As used throughout this part theterms Secretary or Secretary ofL abor shall mean the Secretary of

L abor, U.S. Department of L abor, orhis or her designee.

[24 F R 729, F eb. 3, 1959, as amended at 46 FR50349, Oct. 9, 1981; 49 F R 22036, M ay 24, 1984;53 F R 45722, Nov. 10, 1988; 61 FR 19986, May 3,1996]

530.2 Restriction of homework.

Except as provided in subpart B ofthis part, no work in the industries de-fined in paragraphs (e) through (k) of

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530.3

530.1 shal l be done in or about a home,apartment, tenement, or room in a residential establishment unless a specialhomework certificate issued and in effect pursuant to this part has been obtained for each homework er or unl essthe homeworker is so engaged underthe supervision of a Sheltered Work-shop, as defined in 525.2 of thi s chapter.

[53 FR 45722, Nov. 10, 1988]

530.3 Application forms for individual homeworker certificates.

Certificates authorizing the employment of industrial homeworkers in theindustries defined in 530.1 may beissued on the following terms and conditions upon application therefore onforms provided by the Wage and HourDivision. Such forms shall be signed byboth the homeworker and the employer.

(Approved by the Office of Management andBudget under control number 12150005)

[24 F R 729, F eb. 3, 1959, as amended at 49 F R18294, A pr . 30, 1984]

530.4 Terms and conditions for theissuance of individual homeworker

certificates.(a) Upon application by the

homeworker and the employer onforms provided by the Wage and HourDivision, certificates may be issued tothe appli cant employer authorizing t heemployment of a particular worker inindustrial homework in a particular industr y, provided that the applicati on isin proper form and sets forth factsshowing that the worker:

(1)(i) I s unable to adjust to factorywork because of age or physi cal ormental disability; or

(ii ) I s unable to leave home becausethe workers presence is required tocare for an invalid in the home; and

(2)(i) Was engaged in industrialhomework in the particular industryfor which the certificate is applied, assuch i ndustr y is defined in 530.1, pri orto: (a) Apri l 4, 1942, in the button andbuckle manufacturing industry; (b) November 2, 1942, in the embroideries industry; (c) A pri l 1, 1941, in the glovesand mittens industry; (d) October 7,1942, in the handkerchief manufacturing industry; (e) J uly 1, 1941, in the


jewelry manufacturi ng industry ; or (f)March 5, 1942, in the womens apparelindustry, except that if this requirement shall result in unusual hardshipto the individual homeworker it shallnot be applied; or

(ii ) Is engaged in industr ial home-work under the supervision of a StateVocational Rehabilitation Agency.

(b) No homeworker shall perform industrial homework for more than oneemployer in the same industry, buthomework employment in one industry

shall not be a bar to the issuance ofcert ifi cates for other industr ies.

(Information collection requirements contained in paragraph (a) were approved by theOffice of Management and Budget under control number 12150005)

[24 F R 729, F eb. 3, 1959, as amended at 43 FR28470, J une 30, 1978; 46 F R 50349, Oct. 9, 1981;49 F R 44270, Nov. 5, 1984; 53 F R 45722, Nov. 10,1988]

530.5 Investigation.

An investigation may be ordered inany case to obtain additional data orfacts. A medical examination of theworker or invalid may be ordered or acertification of facts concerning eligibility for the certificate by designatedofficers of the State or F ederal Government may be required.

530.6 Termination of individualhomeworker certificates.

(a) A certificate shall be valid underthe terms set forth in the certificatefor a period to be designated by the Administrator or his authorized representative. Application for renewal ofany certificate shall be filed in thesame manner as an original applicationunder t his part.

(b) No effective certificate shall expire until action on an application for

renewal shall have been finally deter-mined, provided that such applicationhas been properly executed in accordance with the requirements, and filednot less than 15 nor more than 30 daysprior t o the expirati on date. A fi nal de-termination means either the grantingof or initial denial of the applicationfor renewal of a certificate, or withdrawal of the application. A properlyexecuted application is one which

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contains the complete information required on the form.

[24 F R 729, F eb. 3, 1959, as amended at 27 F R7020, J ul y 25, 1962]

530.7 Revocation and cancellation ofindividual homeworker certificates.

Any certificate may be revoked forcause at any time. Violation of anyprovision of the Fair L abor StandardsAct shall be sufficient grounds for revocation of all certificates issued to anemployer, in which event no certifi

cates shall be issued to the offendingemployer for a peri od of up to one year.Before any certificate is cancelled,however, interested parties shall be notified in writing of the facts war-ranting such cancellation and affordedan opportunity to demonstrate orachieve compliance. In appropriate circumstances, the Administrator shallafford an opportunity for a hearing toresolve the disputed matt er.

[49 F R 44271, Nov. 5, 1984]

530.8 Preservation of individualhomeworker certificates.

A copy of all certificates provided to

the employer under this part shall bemaintained for a period of at leastthree years after the last employmentunder the certi ficate.

[49 F R 44271, Nov. 5, 1984]

530.9 Records and reports.

The issuance of a cert i fi cate shal l notrelieve the employer of the duty ofmaintaining the records required in theregulations in part 516 of this chapterand failure to keep such records shallbe sufficient cause for the cancellationof certificates issued to such an employer.

530.10 Delegation of authority togrant, deny, or cancel an individualhomeworker certificate.

The A dministr ator may from t ime totime designate and appoint members ofthe Administrators staff or StateAgencies as his author ized representatives with full power and authority togrant, deny, or cancel homeworkcertificates.

[43 F R 28470, J une 30, 1978]

530.12

530.11 Petition for review.

Any person aggrieved by the actionof an authorized representative of theAdministrator in granting or denying acertificate may, within 15 days there-after or within such additional time asthe Administrator for cause shownmay allow, fil e wit h the Administratora petition for review of the action ofsuch representative praying for suchrelief as is desired. Such petition forreview, if duly filed, will be acted uponby the Administrator or an authorizedrepresentative of the Administratorwho took no part in the proceedingbeing reviewed. All interested partieswill be afforded an opportunity topresent their views in support of or inoppositi on to the matters prayed for inthe petition.

530.12 Special provisions.

(a) Gloves and mittens industry. Anycertificate issued to an industrialhomeworker by the New Y ork StateDepartment of L abor under paragraphI I of Home Work Order No. 4 Restri cting Industrial Homework in the GloveIndustry , dated J une 28, 1941, wil l begiven effect by the Administrator as acertificate permitting the employmentof the homeworker under t he terms of530.4 for the peri od duri ng which suchcert ifi cate shall continue in force.

(b) Jewelry manufacturing industry.Nothing contained in the regulationsin this part shall be construed to prohibit the employment, ashomeworkers, of Ameri can Indians re-siding on the Navajo, P ueblo, and HopiIndian R eservati ons, who are engagedin producing genuine hand-fashionedjewelry on the Indian reservationsmentioned, provided the employmentof such homeworker is in conformitywith the following condit ions:

(1) T hat each employer of one ormore Indian homeworkers engaged in

making hand-fashioned jewelry onthese Indian reservations shall submitin duplicate to the regional office ofthe Wage and Hour Division for the region in which the employers place ofbusiness is located, on April 1, August1, and December 1 of each year, thename and address of such employee en-gaged during the preceding 4-month period in making hand-fashioned jewelryon Indian reservations;

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530.101

(2) T hat each employer of one ormore I ndian homeworkers engaged inmaking hand-fashioned jewelry onthese Indian reservations shall file copies of the piece rates in duplicate withthe regional office of the Wage andHour Division for the region in whichthe employers place of business is located on Apr il 1, A ugust 1, and December 1 of each year, and

(3) T hat each employer of one ormore I ndian homeworkers engaged inmaking hand-fashioned jewelry onthese Indian reservations shall keep,

maintain, and have available for inspection by the Administrator or theAdministrators authorized representative at any time, records and reportsshowing with respect to each of thehomeworkers engaged in mak ing hand-fashioned jewelry on these Indian reservati ons, the following information:

(i) Name of the homeworker.(ii) Address of the homeworker.(ii i) Date of birt h of the homeworker,

i f under 19 years of age.(iv) Description of work performed.(v) Amount of cash wage payments

made to the homeworker for each payperiod.

(vi) Date of such payment.(vii ) Schedule of piece rates paid.

These records shall be kept by eachemployer for each of the employershomeworkers engaged in mak ing hand-fashioned jewelry on Indian reservations, as provided in this section, inlieu of the records required under516.2 and 516.31 of thi s chapter: Provided, however, That nothing in thissection shall relieve an employer frommaintaining all other records requiredby part 516 of this chapter.

[24 F R 729, F eb. 3, 1959, as amended at 43 F R28470, J une 30, 1978]

Subpart B Homeworker EmployerCertificates

SOURCE: 53 F R 45722, Nov. 10, 1988, unl essotherwise noted.

530.101 General.

(a) Except as provided in subpart C, acertificate may be issued to an employer authorizing the employment ofhomeworkers in


(1) T he kni tted outerwear, gloves andmittens, and embroideries industries asdefi ned in paragraphs (g), (h), and (k),respectively, at 530.1, effective J anuary 9, 1989;

(2) In the button and buckle andhandkerchief manufacturi ng i ndustr iesas defined in paragraphs (i) and (j), respectively, of 530.1, effecti ve J uly 9,1989; and

(3) In the jewelry industry as definedin paragraph (f) of 530.1, effective J uly9, 1989, but onl y where the employer shomework ers are engaged exclusi vely

in the stringing of beads and other jewelry and the carding and packaging ofjewelry . The t erms carding and pack-aging of jewelryi nclude the attachingof jewelry to cards, boxing and wrap-ping, and the use of common householdglues available to the general public,but do not include potentially hazardous operati ons such as the use of industrial glues, epoxies, soldering irons,or heati ng elements.

(b) T his certi ficate may be issued ir respective of whether individualhomeworkers meet the conditions setforth in paragraph (a) of 530.4 of Sub-part A . Unless suspended or revoked,such certi ficates are vali d for t wo-year

periods. Applications for renewals mustbe submitted no later than thirty (30)days prior to the expiration date of thecurrent cert if icate. Except as providedin subpart A, in the absence of a certificate, the employment ofhomeworkers in these industries is prohibit ed, and an employer vi olati ng thi sprohibition is subject to all the sancti ons provided in the Fai r L abor Standards Act and in this part, including aninjunction restraining the employmentof homework ers.

(c) Certificates authorizing such employment may be issued on the following terms and conditi ons upon writ -ten application to the Administrator,

Wage and Hour Division, EmploymentStandards Administration, U.S. Department of L abor, 200 Consti tuti onAvenue, NW., Washi ngton, DC 20210.

530.102 Requests for employer certificates.

The ini tial request for cert i fi cationor renewal application shall be signedby the employer and shall contain thename of the firm, its mailing address,

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the physical l ocati on of the firm s pri ncipal place of business and a description of the business operations anditems produced. In addition, the initialor renewal application shall containthe names, addresses, and languages (ifother than English) spoken by thehomeworkers that are currently employed (if any) or expected to be employed. The employer shall also pro-vide the Administrator, within thirty(30) days, a notice of each change of ad-dress of the principal place of business.The notifi cation shal l be in wr iting and

addressed to the Administrator, Wageand Hour Division, Employment Standards Administration, 200 ConstitutionAvenue, NW., Washi ngton, DC 20210.

530.103 Employer assurances.

I n order to be granted a cert i ficateauthorizing the employment of industrial homeworkers, the employer mustprovide written assurances concerningthe employment of homework ers subject to section 11(d) of the F air L aborSt andards Act t o the effect that:

(a) All homeworkers shall be paid inaccordance with the monetary provisions of the Act.

(b) All homeworkers shall be employed in compliance with the childlabor provisions contained in secti on 12of the Act and regulations and ordersissued pursuant to section 12. Allhomeworkers will be instructed not topermit minors to work in violation ofsuch provisions.

(c) Records of hours work ed andwages paid shall be maintained in accordance wit h secti on 11 of the Act andpart 516 of this chapter.

(d) All homeworkers shall completehomeworker handbooks in accordancewith 516.31 of par t 516.

(e) All homeworkers will be instructed to accurately record all hours

worked, piece work information, andbusiness-related expenses in the hand-books.

(f) All records shall be made avail-able for inspection and transcriptionby the Administrator or a duly authorized and designated representative, ortranscription by the employer uponwrit ten request.

(g) Piece rates paid to homeworkersshall be established using stop watch

530.104

time studies or other work measurement methods.

(h) Al l homeworkers shall be encouraged to cooperate with the Departmentin any investigati on that may be made.

(i) With respect to jewelry manufacturing, no operations other than thestringing of beads and other jewelryand the carding and packaging of jewelry will be performed byhomeworkers.

530.104 Bonding or security pay

ments.(a) Where in the Administrator s

judgment there i s not suffi cient reasonto believe that the Act will be complied with or that money will be avail-able if violations of the Act occur, theAdministrator may condition issuanceor renewal of a certificate to an employer upon the furnishing of a bondwith a surety or sureties satisfactoryto the Administr ator.

(b) The Administrator shall conditionissuance or reinstatement of a certificate to any employer whose application for a certificate had previouslybeen denied, or whose certificate had

been revoked, upon the furni shing of abond.(c) Any bond required by the Admin

istrator under paragraph (a) or (b) ofthis section shall be in an amount determined by the Administrator, up to$2500 for each homework er t o be employed by such employer under the certi ficate. In l ieu of a bond, the employermay furnish a cash payment of equalamount, to be held in a special depositaccount by the Administrator for theperiod during which the certificate isin effect. Such bond, or cash payment,shall be subject to payment or forfeiture, in whole or in part, upon afinal determination that the employerhas failed to pay minimum wages orovertime compensation tohomeworkers in accordance with theAct. Any sums thus paid or forfeited tothe Administr ator shall be disbursed toaffected homeworkers in accordancewit h secti on 16(c) of the Act.

(d) At the Administrators discretion,the obligation of a bond may be relieved, and any cash payment held as

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530.105

security in lieu thereof may be re-funded (together with any interest accrued thereon), upon a subsequent de-termination that the employer is incompli ance with the Act and that sufficient funds will be available to meetback wage payment obligations in theevent of vi olati ons of the Act .

530.105 Investigations.

Any employer in a restricted industry who requests certification to em-ploy homeworkers will be investigated

promptly after the issuance of the certi ficate by the Wage and Hour Division.Where such an employer is found to bein violati on of the FL SA , and the violations are corrected and future compliance is promised, the firm wil l be re-investigated to assure that full F L SAcompliance has, in fact, been achieved.

Subpart CDenial/Revocation ofHomeworker Employer Certifi-cates


530.201 Conflict with State law.

No certi ficate wil l be issued pursuantto 530.101 of subpart B above authorizing the employment of homeworkersin an industry in a State where theGovernor (or authorized representative) has advised the Administrator ofthe Wage and Hour Division in writingthat the employment of homeworkersin such industry, as defined in para-graphs (f) through (k) of 530.1, i s i l legal by virtue of a State labor standardsor health and safety law.

530.202 Piece rateswork measurement.

(a) No certificate will be issued pur

suant t o 530.101 of subpart B to an employer who pays homework ers based onpiece rates unless the employer establishes the piece rates for the differenttypes of items produced using stopwatch time studies or other workmeasurement methods. Documentationof the work measurements used to establish the piece rates, and the circumstances under which such measurements were conducted shall be retained


for three years and made available onrequest to the Wage and Hour Division.

(b) The fact that an employer basespiece rates on work measurementswhich indicate that the homeworkerswould receive at least the minimumwage at such piece rate(s) does not relieve the employer from the Act s requirement that each homeworker actuall y receive not less than the mini mumwage for all hours worked.

530.203 Outstanding violations andopen investigations.

A homework certificate will not beissued or renewed by the Admini stratorif, within the previous three years, theAdministrator has found and notifiedthe applicant of a monetary violationof the Fair L abor Standards Act i n anamount certain, or the Administratorhas assessed a civi l money penalt y pursuant to subpart D of these regulationsor part 579 of this chapter (child labor),and such amounts are unpaid, or if theapplicant is the subject of a revocationproceeding at the time of the applicati on for renewal, or the appli cant i s thesubject of an open investigation.

530.204 Discretionary denial or rev

ocation.Where the Administrator finds that

the employment of homework ers undera certi ficate is lik ely to result in violati ons of the F air L abor Standards Act,the regulations issued thereunder, orthe assurances required by this part,the Administrator may deny or revokethe cert ifi cate.

530.205 Mandatory denial or revocation.

The Administr ator shal l deny or revoke a certificate in accordance withthe following standards and for the peri od specif ied in the standards:

(a) Serious wage violations. Upon a

finding by the Administrator of a serious wage violation, a certificate shallbe denied (including refusal to renew)or revoked for one year. A seri ous wageviolation is defined as minimum wageor overtime pay violations of the Acttotal l ing $10,000 or more wi th respectto homeworkers; or minimum wageviolations where 10 percent or more ofa certificate holders homeworkers (butin all cases at least two homeworkers)

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failed to receive at least 80 percent ofthe minimum wage for all hourswork ed for 6 or more weeks in any 3month period; or minimum wage orovert ime pay violati ons affecti ng morethan half of the homeworkers of thecerti fi cate holder for 6 or more weeksin any 3 month period. All other wageviolations are deemed non-serious wageviolations for purposes of this section.

(b) Repeated wage violations. F or repeated wage violations found by theAdministrator, a certificate shall bedenied or revoked for one to threeyears, depending on the seri ousnessand frequency of the violations.

(c) Child labor violations. Upon a finding by the Administrator of a violationof the child labor provisions of section12 of the F air L abor St andards Act andthe regulations at part 570 of this title,a cert if icate shall be denied or revokedfor one year. Upon a second finding bythe Administrator of such a violation,the certificate shall be denied or revoked for t hree years.

(d) Failure to pay back wages or civilmoney penalties judged owing. Upon thefailure of a certificate holder to paywit hin 60 days back wages or civi l

money penalties finally judged by acourt, administrative law judge orother appropriate authority, as thecase may be, to be owed by the certificate holder, or agreed to be paid by thecertificate holder, or within suchlonger period as may be specif ied in thefinal order or agreement, a certificateshall be denied or revoked for up t o oneyear or for such period as such obligation shall remain unpaid if longer thanone year.

(e) Failure to cooperate in an investigation. Where the Administr ator fi nds obstruction of or other failure to cooper-ate in a Wage and Hour investigationby a certificate holder which impedes

the investigation, the certificate shallbe denied or revoked for a peri od of oneto three years, depending on the circumstances. F or purposes of this r egulation, cooperation includes providingrecords upon request to Wage and Hourcompliance officers, identifyinghomeworkers of the certificate holder,and encouraging homework ers to mak ethemselves available in connectionwith an investigation.

530.206

(f) Serious recordkeeping violations.Upon a finding by the Administratorthat a certificate holder has engaged ina serious recordkeeping violation, thecertificate may be revoked for up toone year. Upon a second finding by theAdministrator of a serious record-keeping violat ion, a certi ficate shall bedenied or r evoked for one to threeyears. A serious recordkeeping violation is defined as one where, eitherthrough errors in or omissions of required information, the name and cur-rent address of homeworkers and the

data which is necessary for the accurate determination of hours worked byor wages paid to homeworkers or datanecessary for t he computati on of wagesowed to homeworkers i s unavailablewith respect to 10 percent or more ofthe homeworkers.

(g) Deliberate misstatement in an application for a certificate or in other docu

ments. Upon a finding by the Administrator of a deliberate misstatement ofa material fact in an application for acertificate, in payroll records, or inany other information submitted tothe Wage and Hour Division or maintained by the employer pursuant tothese regulations, the certificate shall

be denied or revoked for one to threeyears.

(h) Discrimination against ahomeworker. Upon a finding by the Administrator that a certificate holderhas discharged or otherwise discriminated against a homeworker with respect to the homeworkers compensation or terms, conditions, or privilegesof employment because thehomework er engaged in protected acti vit y, the cert ifi cate shall be denied orrevoked for thr ee years. Protected activity is defined as: (1) Any complaintof a violation of the Act to the employer, the Department or other appropriate authority, or (2) any action

which furthers the enforcement of orcompli ance with the Act, such as giving information to a Wage and Hourcompliance officer.

530.206 Special circumstances.

At the discretion of the Administrator, a certificate need not be deniedor revoked pursuant to 530.204 or530.205 of thi s subpart i f the Administr ator finds all of the foll owing:

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530.301

(a) The cert if icate holder, despite theexerci se of due care, did not k now anddid not have reason to know of the violations;

(b) All back wages and civil moneypenalties found by the Administratorto be owing by the certificate holderhave been paid; and

(c) The cert ifi cate holder has takenappropri ate steps to prevent recurrenceof the violati ons.

Subpart DCivil Money Penalties


530.301 General.

A system of civil money penalties isestabl ished to provide a remedy for anyviolation of the F L SA related to home-work (except child labor violations,which are subject to civil money penalties pursuant to part 579 of this chapter), or for any violation of thehomeworker regulations or employersassurances pursuant to this part, whichare not so serious as to warrant denialor revocation of a certificate. Accord

ingly, no civil money penalty will beassessed for conduct which serves asthe basis of proposed denial or revocation of a certificate. (See subpart C ofthis part.) Civil money penalties willbe assessed only against employers whoare operating under a certificate orwho are seeking certi ficati on.

530.302 Amounts of civil money penalties.

(a) A civil money penalty, not to exceed $500 per affected homework er forany one violation, may be assessed forany violation of the Act or of this partor of the assurances given in connec

tion with the issuance of a certificate.(b) The amount of civi l money pen

alties shall be determined per affectedhomeworker within the limits set forthin the following schedule, except thatno penalty shall be assessed in the caseof violations which are deemed to be deminimis in nature:


Nature of violation

Penalty per affectedhomeworker

MinorSubstan-

tial

Repeated,inten

tional orknowing

Recordkeeping ................ $10100 $100200 $200500

Monetary violations ......... 10100 100200 ................

Employment ofhomeworkers without acertificate .................... .. .............. 100200 200500

Other violations of statutes, regulations or employer assurances ........ 10100 100200 200500

530.303 Considerations in deter-mining amounts.

(a) In determining the amount of apenalty wit hin any range, the Admini str ator shall t ake into account t he presence or absence of circumstances suchas the following:

(1) Good faith attempts to complywith the Act or regulations;

(2) Extent to which the violation isunder the employers control;

(3) Non-culpable ignorance of the requirements of the Act or regulat ions;

(4) F alse documents or representations; and

(5) Exerci se of due care.(b) An employers financial inabilityto meet obli gati ons under t he Act shallnot constitute a mitigating or extenuating ci rcumstance.

(c) No civil money penalty shall beassessed against an employer, who applies for a certificate, solely for employi ng homeworkers, provided the employer i s not currently under i nvestigati on by the Wage and Hour Di vision.

530.304 Procedures for assessment.

Assessment of penalties pursuant tothis section, including administrativeproceedings, shall be in accordancewith the procedures set out in subpartE of this part.

Subpart EAdministrativeProcedures

SOURCE: 53 FR 45725, N ov. 10, 1988, unlessotherwise noted.

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530.401 Applicability of proceduresand rules.

The procedures and rules containedherein prescribe the administrativeprocess which will be applied with respect to a determination to deny (including refusal to renew) or revoke acertificate and to a determination toassess civil money penalties. Specialrules and procedures for the emergencyrevocation of certificates are pre-scribed in 530.412 of thi s subpart.

530.402 Notice of determination.

Whenever the Administrator deter-mines to deny or revoke a certificateor determines to assess a civil moneypenalty, the person affected by such de-terminat ion shall be notif ied of the de-termination in writing, by certifiedmail to t he last known address. Thenotice required shall:

(a) Set forth the determinat ion of theAdministrator, including the specificstatutory or regulatory provision orassurance violated, the reasons for denying or revoking a certificate, or theamount of any civil money penalty assessment and the reason or reasonstherefor.

(b) Set forth the right to request a

hearing on such determination.(c) Set forth the time and method for

requesting a hearing, and the procedures relating thereto, as set forth in530.403 of thi s subpart.

(d) Inform any affected person or per-sons that in lieu of formal proceedingsthere is available an alternative summary proceeding under 530.412 of thi ssubpart.

(e) Inform any affected persons thatin the absence of a timely request for ahearing the determinat ion of t he Administrator shall become final andunappealable.

530.403 Request for hearing.

(a) Except in the case of an emergency revocation under 530.411 of thi ssubpart, a request for an administrative hearing on a determination referred to in 530.402 of t hi s subpar tshall be made in writing to the Administ rator of the Wage and Hour Di vision,Employment Standards Administrati on, U.S. Department of L abor, Washington DC 20210, and must be receivedno later than thirty (30) days after

530.405

issuance of the notice referred to in530.402 of thi s subpar t.

(b) No particular form is prescribedfor any request for a hearing permittedby this part . However, any such requestshall be typewritten or legibly written;specify the issue or issues stated in thenotice of determination giving rise tosuch request; state the specific reasonor reasons why the person requestingthe hearing believes such determination is in error; be signed by the personmaking the request or by an authorized

representative of such person; and include the address at which such personor authorized representative desires toreceive further communications relating t hereto.

(c) In the case of an emergency revocation, a request for an administrative hearing shall be made in writingto the Chief A dministrati ve LawJ udge, U.S. Department of L abor, 111120th Street, NW., suite 700, Washington, DC 20036, and must be receivedno later t han 20 days after t he issuanceof the notice referred to in 530.402 ofthi s subpart .

530.404 Referral to AdministrativeLaw Judge.

Upon receipt of a timely request for ahearing, the request and a copy of thenotice of administrative determinationcomplained of, shall, by Order of Reference, be referred to the Chief Administr ati ve L aw J udge, for a determination in an administrative proceeding asprovided herein. The noti ce of administrative determination and request forhearing shall, respectively, be giventhe effect of a complaint and answerthereto for purposes of the administrati ve proceedings, subject to any amendment that may be permitted under 29CF R part 18.

530.405 General.

Except as specifically provided inthese regulations, the Rul es of P racti ce and P rocedure for Administr ativeHearings before the Office of Administrati ve L aw J udgesestablished by theSecretary at 29 CF R part 18 shall applyto administrative proceedings de-scribed in this subpart.

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530.406

530.406 Decision and order of Administrative Law Judge.

(a) The Administrati ve Law J udgeshall prepare, after completion of thehearing and closing of the record, a decision on the issues referred by the Administrator.

(b) The decision of the Admini strati ve L aw J udge shall include a statement of findings and conclusions, withreasons and basis therefor, upon eachmaterial issue presented on the record.I f the Administrative Law J udge finds

that the Administrator has establishedby a preponderance of the evidence thefactual basis for the determination todeny or revoke a certificate or to assess a civil money penalty, that determinati on shall be affi rmed. The decision shall also include an appropriateorder which may affirm, deny, reverse,or modify, in whole or in part, the de-termination of the Administrator. Thereason or reasons for such order shallbe stated in the decisi on.

(c) The decision shall be served on allparties and the Secretary in person orby certi fied mail. The decision whenserved by the Admini strati ve L aw

J udge shall constitute the fi nal orderof the Department of L abor unl ess theSecretary, as provided for in 530.407 ofthis subpart, determines to review thedecision.

530.407 Procedures for initiating andundertaking review.

Any party desiring review of the decision of the Administrati ve L aw J udgemay petition the Secretary to reviewthe decision. T o be effecti ve, such petition must be received by the Secretarywithin 30 days of the date of the decision of the Administrati ve L aw J udge.Copies of the petition shall be served

on all parties and on the Chief Administrati ve L aw J udge. I f the Secretarydoes not issue a notice accepting a petition for review within 30 days afterreceipt of a timely filing of the petition, or within 30 days of the date ofthe decision if no petition has been received, the decision of the Administ rat ive L aw J udge shall be deemed thefinal agency acti on.


530.408 Notice of the Secretary to re-view decision.

Whenever the Secretary determinesto review the decision and order of anAdministrati ve Law J udge, the Secretary shall notify each party of theissue or issues raised; the form inwhich submission shall be made (i.e.,briefs, oral argument, etc.); and, thetime within which such presentationshall be submitted.

530.409 Final decision of the Secretary.

The Secretary s final decision shallbe served upon al l parti es and the A dmini strati ve L aw J udge, in person orby cert ifi ed mail .

530.410 Special procedures.

In a revocation proceeding pursuantto 530.205(d) of subpart C of this partarising as a result of a cert ifi cate holders failure to pay back wages or civilmoney penalt ies judged owing, the Admini strator may fil e a motion for expedited decision, attaching to the notice,by affidavit or other means, evidencethat a final order has been entered oragreement signed requiring respondent

to pay back wages or civi l money penalties and that the back wages or civilmoney penalties have not been paid.The respondent in the proceeding shal lhave 20 days in which to file a countering affidavit or other evidence. I f noevidence countering the material assertions of the Administrator has beensubmitted within 20 days, the Administr ative L aw J udge shall, wi thi n 30 daysthereafter, affirm the revocation or denial of the certificate. If the respondent does timely file such evidence, theAdministr ative L aw J udge shall schedule a hearing pursuant to 530.411(c) ofthis subpart and the case shall be subject to the expedit ious procedures fol

lowing therein.

530.411 Emergency certificate revocation procedures.

(a) When the Administrator deter-mines that immediate revocation of ahomework certificate is necessary tosafeguard the payment of minimumwages to homework ers, a noti ce of pro-posed emergency revocation of a certificate shall be sent to the certificate

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holder pursuant to 530.402 of t hi s sub-part setting forth reasons requiringemergency revocation of the certificate.

(b) If no request for a hearing pursuant to 530.403 of t hi s subpart is received within 20 days of the date of receipt of the notice by the certificateholder, the proposed revocation of thecert ifi cate shall become final.

(c) The Office of Administrati ve L awJ udges shal l notify the part ies at theirlast known address, of the date, timeand place for the hearing, which shall

be no more than 60 days from the dateof receipt of the request for the hearing. All parties shall be given at least5 days notice of such hearing. No re-quests for postponement shall be granted except for compelling reasons.

(d) The Administrati ve Law J udgeshall issue a decision pursuant to530.406 of thi s subpart wi thi n 30 daysafter the termination of a proceedingat whi ch evidence was submit ted. Thedecision shall be served on all partiesand the Secretary by certi fied mail andshall constitute the final order of theDepart ment of L abor unl ess the Secretary determines to review the decision.

(e) Any party desiring review of thedecision of the Administr ative L awJ udge may peti tion the Secretary toreview the decision of the Administrati ve Law J udge. To be effecti ve, suchpetition must be received by the Secretary within 30 days of the date of thedecision of the Administr ative L awJ udge. I f t he Secretary does not issue anotice accepting a petition for reviewwithin 15 days after receipt of a timelyfiling of the petition, or within 30 daysof the date of the decision if no petiti on is fil ed, the decision of the Administ rati ve Law J udge shall be deemedthe final agency action.

(f) The Secretarys decision shall be

issued within 60 days of the notice bythe Secretary accepting the submission, and shall be served upon all par-ti es and the Administrati ve L awJ udge, in person or by cert i fi ed mail .

530.412 Alternative summary proceedings.

In lieu of an administrative hearingbefore an Administrati ve L aw J udge

under the above procedures, an applicant or certificate holder who does notdispute the factual findings of the Administrator may, within 30 days of thedate of issuance of the notice of denial,revocation, or assessment (or within 20days in the case of a notice of emergency revocation) petition the Administrator instead to reconsider the denial or revocation of the certificate orthe assessment of civil money penalties. An applicant or certificate holder electing this informal procedure

may appear before the Administratorin person, make a written submissionto the Administrator, or both. Such re-consideration by the Administratorshall be available only upon waiver bythe applicant or certificate holder ofthe formal heari ng procedures providedby the above regulations.

530.413 Certification of the record.

Upon receipt of a complaint seekingreview of a final decision issued pursuant to this part filed in a United StatesDistrict Court, after the administrative remedies have been exhausted, theChief A dministrati ve L aw J udge shall

promptly index, certify and file withthe appropriate United States DistrictCourt, a full, true, and correct copy ofthe entire record, including the transcript of proceedings.

530.414 Equal Access to Justice Act.

P roceedings under thi s part are notsubject to the provisions of the EqualAccess to J ustice Act. I n any heari ngconducted pursuant to these regulati ons, Administrative L aw J udges shallhave no power or authority to awardattorney fees or other litigation expenses pursuant to the Equal Access toJ ustice Act .

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