010.14-001
Statement of Organization
and Operations
The Arkansas Department of Labor is an agency of state
government created by Act 161 of 1937, Ark. Code Ann. §
11-2-101
et seq. The Labor Standards Division is working unit of the
Arkansas Department of Labor with regulatory or enforcement authority
over:
1. Minimum wage and
overtime;
2. Prevailing
wage;
3. Child labor;
4. Private employment agencies;
5. Claims for unpaid wages of less than
$1000; and
6. A number of
miscellaneous employment standards laws, the enforcement of which is not
otherwise provided for by state law or is specifically vested with the Director
of Labor or the Department of Labor.
The Labor Standards Division oversees the licensure of private
employment agencies. Ultimate authority for the operation of the agency is in
the Director of the Department of Labor, who is appointed by the Governor. The
individual charged with the day-to-day operations is referred to as the Labor
Standards Administrator, who is selected by the director. From time to time,
the director promulgates rules and regulations.
010.14-002
Information for
Public Guidance
The mailing address and telephone number for the Labor
Standards Division is:
Labor Standards Division
Arkansas Department of Labor
10421 West Markham Street
Little Rock, AR 72205
(501) 682-4500
The Department of Labor makes available a list of persons
holding certain responsibilities for handling FOIA requests, licensing
questions, and complaints against licensees so that the public may obtain
information about the agency or make submissions or requests. The names,
mailing addresses, telephone numbers, and electronic addresses can be obtained
from the agency's office or Web site.
The agency has a list of official forms used by the agency and
a list of all formal, written statements of policy and written interpretative
memoranda, and orders, decisions and opinions resulting from adjudications,
which may be obtained from the agency's office or Web site. The Department of
Labor Web site is: http://www.arkansas.gov/labor/.
The address for the Labor Standards Division is:
Labor Standards Division
Arkansas Department of Labor
10421 West Markham
Little Rock, AR 72205
Copies of all forms used by the agency, written statements of
policy and written interpretive memoranda, and all orders issued by the agency
may be obtained from the agency's office.
010.14-003
General Organization
A. The Labor Standards Division is generally
divided into an office staff and a field staff. The field staff is composed of
investigators.
B. All public
meetings will be conducted pursuant to Robert's Rules of Order and in
conformity with the Arkansas Freedom of Information Act.
C. The director may create standing and ad
hoc committees. The director will select members of committees. A quorum for
the transaction of committee business is a majority of the number of voting
members of the committee.
010.14-004
Rule-Making
A.
Authority
The agency has been authorized by the Legislature to promulgate
rules. Ark. Code Ann. §
11-4-209(a)
(minimum wage and overtime); §
22-9-307
(prevailing wage); §§
11-6-111(b)(2)
and
11-12-105(1)
(child labor); and §
11-11-204(d)
(private employment agencies). The agency follows the procedural requirements
of the Arkansas Administrative Procedure Act, in particular Ark. Code Ann. §
25-15-203
and §
25-15-204.
Additionally, the agency is required to abide by the provisions of Ark. Code
Ann. §
10-3-309.
B.
Initiation of
Rule-Making
The process of adopting a new rule or amending or repealing an
existing rule (hereinafter referred to"rule-making") may be initiated by
request of the director that the staff submit proposed drafts. Additionally,
staff of the agency may request permission of to initiate rule-making. Third
persons outside the agency may petition for the issuance, amendment, or repeal
of any rule.
C.
Petition to Initiate Rule-Making
Third parties may initiate rule-making to adopt, amend, or
repeal a rule by filing a petition with the agency to initiate rule-making. The
petition must contain the name, address, and telephone number of the
petitioner, the specific rule or action requested, the reasons for the rule or
action requested, and facts showing that the petitioner is regulated by the
agency or has a substantial interest in the rule or action requested.
The petition to initiate rule-making shall be filed with the
Director of the Department of Labor.
Within thirty (30) days after submission of the petition, the
director will either deny the petition, stating its reasons in writing, or will
initiate rule-making.
D.
Pre-Filing with the Bureau of Legislative Research
Thirty (30) days before the public-comment period ends, the
agency will file with the Bureau of Legislative Research the text of the
proposed rule or amendment as well as a financial impact statement and a Bureau
of Legislative Research questionnaire as provided by Ark. Code Ann. §
10-3-309.
E.
Public Input
1. Before finalizing language of a proposed
new rule or an amendment to, or repeal of, an existing rule, the director or
his designee will receive public input through written comments and/or oral
submissions. The agency will designate in its public notice the format and
timing of public comment.
2. Any
public hearing will provide affected persons and other members of the public a
reasonable opportunity for presentation of evidence, arguments, and oral
statements within reasonable conditions and limitations imposed by the agency
to avoid duplication, irrelevant comments, unnecessary delay, or disruption of
the proceedings.
3. The director or
his designee may preside at the public hearing. The agency must ensure that the
agency personnel responsible for preparing the proposed rule or amendment are
available, and will notify third parties initiating rule changes to be
available to explain the proposal and to respond to questions or comments
regarding the proposed rule.
4. The
agency will preserve the comments made at the public hearing by a
recording.
5. Any person may submit
written statements within the specified period of time. All timely, written
statements will be considered by the director and be made a part of the
rule-making record.
F.
Notice of Rule-Making
The agency will give notice of proposed rule-making to be
published pursuant to Ark. Code Ann. §
25-15-204.
The notice will set any written comment period and will specify the time, date,
and place of any public hearing.
G.
The Decision to Adopt a Rule
1. The agency will not finalize language of
the rule or decide whether to adopt a rule until the period for public comment
has expired.
2. Before acting on a
proposed rule, the agency will consider all of the written submissions and/or
oral submissions received in the rule-making proceeding or any memorandum
summarizing such oral submissions, and any regulatory analysis or fiscal impact
statement issued in the rule-making proceedings.
3. The agency may use its own experience,
specialized knowledge, and judgment in the adoption of a rule or consider the
experience, specialized knowledge and judgment of agency staff.
H.
Variance Between Adopted
Rule and Published Notice of Proposed Rule
1. The agency may not adopt a rule that
differs from the rule proposed in the published notice of the intended
rule-making on which the rule is based unless:
a. The final rule is in character with the
original scheme and was a logical outgrowth of the notice and comments stemming
from the proposed rule, or
b. The
notice fairly apprised interested persons of the subject and the issues that
would be considered so that those persons had an opportunity to
comment.
2. In
determining whether the final rule is in character with the original scheme and
was a logical outgrowth of the notice and comments, and that the notice of
intended rule-making provided fair warning that the outcome of that rule-making
proceeding could be the rule in question; the board must consider the following
factors:
a. The extent to which persons who
will be affected by the rule should have understood that the rule-making
proceeding on which it is based could affect their interests; and
b. The extent to which the subject matter of
the rule or issues determined by the rule are different from the subject matter
or issues contained in the notice of intended rule-making; and
c. The extent to which the effects of the
rule differ from the effects of the proposed rule contained in the notice of
intended rule-making.
I.
Concise Statement of Reasons
1. When requested by an interested person,
either prior to the adoption of a rule or within thirty (30) days after its
adoption, the agency shall issue a concise statement of the principal reasons
for and against the adoption of the rule. Requests for such a statement must be
in writing and be delivered to the Director of the Department of Labor. The
request should indicate whether the statement is sought for all or only a
specified part of a rule. A request will be considered to have been submitted
on the date on which it is received by the agency.
2. The concise statement of reasons must
contain:
a. The agency's reasons for adopting
the rule;
b. An indication of any
change between the text of the proposed rule and the text of the rule as
finally adopted, with explanations for any such change; and
c. The principal reasons urged in the
rule-making procedure for and against the rule, and the agency's reasons for
overruling the arguments made against the rule.
J.
Contents
The agency shall cause its rules to be published and made
available to interested persons. The publication must include:
1. The text of the rule; and
2. A note containing the following:
a. The date(s) the board adopted or amended
the rule;
b. The effective date(s)
of the rule;
c. Any findings
required by any provisions of law as a prerequisite to adoption for
effectiveness of the rule; and
d.
Citation to the entire specific statutory or other authority authorizing the
adoption of the rule;
3.
The publication of the rule(s) must state the date of publication.
K.
Format
The published rules of the board will be organized
substantially in the following format:
1. Statement of Organization and
Operations
2. Information for
Public Guidance
3. General
Organization
4. Purpose and
Scope
5. Definitions
6. Rule-making
7. Emergency Rule-making
8. Declaratory Orders
9. Adjudicative Hearings
10. Licensing
11. Et seq. Substantive rules and other rules
of Agency
L.
Incorporation by Reference
By reference in a rule, the agency may incorporate all or any
part of a code, standard, rule, or other matter if the agency finds that
copying the matter in the agency's rule would be unduly cumbersome, expensive,
or otherwise inexpedient. The reference in the rule must fully and precisely
identify the incorporated matter by title, citation, date, and edition, if any;
briefly indicate the precise subject and general contents of the incorporated
matter; and state that the rule does not include any later amendments or
editions of the incorporated matter. The agency may incorporate such a matter
by reference in a proposed or adopted rule only if the agency makes copies of
the incorporated matter readily available to the public. The rules must state
how and where copies of the incorporated matter may be obtained at cost from
the agency, and how and where copies may be obtained from an agency of the
United States, this state, another state, or the organization, association, or
persons originally issuing that matter. The agency must retain permanently a
copy of any materials incorporated by reference in a rule.
M.
Filing
1. After the agency formally adopts a new
rule or amends a current rule or repeals an existing rule, and after the rule
change has been reviewed by the Legislative Council, the agency staff will file
final copies of the rule with the Secretary of State, the Arkansas State
Library, and the Bureau of Legislative Research, or as otherwise provided by
Ark. Code Ann. §
25-15-204(d).
2. Proof of filing a copy of the rule,
amendment, or repeal with the Secretary of State, the Arkansas State Library,
and the Bureau of Legislative Research will be kept in a file maintained by the
Legal Division of the Arkansas Department of Labor.
3. Notice of the rule change will be posted
on the agency Web page.
010.14-005
Emergency Rule-Making
A.
Request for Emergency
Rule-Making
The proponent of a rule may request the agency to adopt an
emergency rule. In addition to the text of the proposed rule or amendment to an
existing rule and any other information required by Rule
010.14 -004(C), the proponent
will provide a written statement setting out the facts or circumstances that
would support a finding of imminent peril to the public health, safety, or
welfare.
B.
Finding
of an Emergency
Upon receipt of the written statement requesting an emergency
rule-making and documents or other evidence submitted in support of the
assertion that an emergency exists, the agency will make an independent
judgment as to whether the circumstances and facts constitute an imminent peril
to the public health, safety, or welfare requiring adoption of the rule upon
fewer than 30 days notice. If the agency determines that the circumstances
warrant emergency rule-making, it will make a written determination that sets
out the reasons for it's finding that an emergency exists. Upon making this
finding, the agency may proceed to adopt the rule without any prior notice or
hearing, or it may determine to provide an abbreviated notice and
hearing.
C.
Effective Date of Emergency Rule
The emergency rule will be effective immediately upon filing,
or at a stated time less than ten (10) days thereafter, if the agency finds
that this effective date is necessary because of imminent peril to the public
health, safety, or welfare. The agency will file with the rule the agency's
written findings justifying the determination that emergency rule-making is
appropriate and, if applicable, the basis for the effective date of the
emergency rule being less than ten (10) days after the filing of the rule
pursuant to Ark. Code Ann. §
25-15-204(e).
The agency will take appropriate measures to make emergency rules known to
persons who may be affected by them.
010.14-006
Declaratory Orders
A.
Purpose and Use of Declaratory
Orders
A declaratory order is a means of resolving a controversy or
answering questions or doubts concerning the applicability of statutory
provisions, rules, or orders over which the agency has authority. A petition
for declaratory order may be used only to resolve questions or doubts as to how
the statutes, rules, or orders may apply to the petitioner's particular
circumstances. A declaratory order is not the appropriate means for determining
the conduct of another person or for obtaining a policy statement of general
applicability from an agency. A petition or declaratory order must describe the
potential impact of statutes, rules, or orders upon the petitioner's
interests.
B.
The
Petition
The process to obtain a declaratory order is begun by filing
with the Director of the Department of Labor a petition that provides the
following information:
1. The caption
shall read: Petition for Declaratory Order Before Arkansas Department of
Labor.
2. The name, address,
telephone number, and facsimile number of the petitioner.
3. The name, address, telephone number, and
facsimile number of the attorney of the petitioner.
4. The statutory provision(s), agency
rule(s), or agency order(s) on which the declaratory order is sought.
5. A description of how the statutes, rules,
or orders may substantially affect the petitioner and the petitioner's
particular set of circumstances, and the question or issue on which petitioner
seeks a declaratory order.
6. The
signature of the petitioner or petitioner's attorney.
7. The date.
8. Request for a hearing, if
desired.
C.
Agency Disposition1. The agency may
hold a hearing to consider a petition for declaratory statement. If a hearing
is held, it shall be conducted in accordance with Ark. Code Ann. §§
25-15-208
and
25-15-213, and
the agency's rules for adjudicatory hearings.
2. The agency may rely on the statements of
fact set out in the petition without taking any position with regard to the
validity of the facts. Within ninety (90) days of the filing of the petition,
the agency will render a final order denying the petition or issuing a
declaratory order.
010.14-007
Adjudicative Hearings
A.
Scope of This Rule
This Rule, 010.14-007, applies in all administrative
adjudications conducted by the Labor Standards Division of the Arkansas
Department of Labor. This procedure is developed to provide a process by which
the agency formulates orders (for example, an order revoking a license to
practice, or imposing civil penalties).
B.
Presiding Officer
The Director of the Department of Labor shall preside at a
hearing or may designate an examiner, referee, or hearing officer to preside at
a hearing.
C.
Appearances1. Any party appearing has
the right, at his or her own expense, to be represented by counsel.
2. The respondent may appear on his or her
own behalf.
3. Any attorney
representing a party to an adjudicatory proceeding must file notice of
appearance as soon as possible.
4.
Service on counsel of record is the equivalent of service on the party
represented.
5. On written motion
served on the party represented and all other parties of record, the presiding
officer may grant counsel of record leave to withdraw for good cause
shown.
D.
Consolidation
If there are separate matters that involve similar issues of
law or fact, or identical parties, the matters may be consolidated if it
appears that consolidation would promote the just, speedy, and inexpensive
resolution of the proceedings, and would not unduly prejudice the rights of a
party.
E.
Notice to
Interested Parties
If it appears that the determination of the rights of parties
in a proceeding will necessarily involve a determination of the substantial
interests of persons who are not parties, the presiding officer may enter an
order requiring that an absent person be notified of the proceeding and be
given an opportunity to be joined as a party of record.
F.
Service of Papers
Unless the presiding officer otherwise orders, every pleading
and every other paper filed for the proceeding, except applications for witness
subpoenas and the subpoenas, shall be served on each party or the party's
representative at the last address of record.
G.
Initiation and Notice of
Hearing1. An administrative
adjudication is initiated by the issuance by the agency of a notice of
hearing.
2. The notice of hearing
will be sent to the respondent by U.S. Mail, return receipt requested, delivery
restricted to the named recipient or his agent, as well as by regular U. S.
mail. Notice shall be sufficient when it is so mailed to the respondent's
latest address on file with the agency.
3. Notice will be mailed at least twenty (20)
days before the scheduled hearing.
4. The notice will include:
a. a statement of the time, place, and nature
of the hearing;
b. a statement of
the legal authority and jurisdiction under which the hearing is to be held; and
c. a short and plain statement of
the matters of fact and law asserted.
H.
Motions
All requests for relief will be by motion. Motions must be in
writing or made on the record during a hearing. A motion must fully state the
action requested and the grounds relied upon. The original written motion will
be filed with the agency. When time allows, the other parties may, within seven
(7) days of the service of the written motion, file a response in opposition.
The presiding officer may conduct such proceedings and enter such orders as are
deemed necessary to address issues raised by the motion. However, a presiding
officer, other than the Director, will not enter a dispositive order unless
expressly authorized in writing to do so.
I.
Answer
A respondent may file an answer.
J.
Discovery
1. Upon written request, the agency will
provide the information designated in Ark. Code Ann. §
25-15-208(a)(3).
2. Such requests should be received by the
agency at least ten (10) days before the scheduled hearing.
K.
Continuances
1. The presiding officer may grant a
continuance of hearing for good cause shown. Requests for continuances will be
made in writing. The request must state the grounds to be considered and be
made as soon as practicable and, except in cases of emergencies, no later than
five (5) days prior to the date noticed for the hearing. In determining whether
to grant a continuance, the presiding officer may consider:
a. Prior continuances;
b. The interests of all parties;
c. The likelihood of informal
settlements;
d. The existence of an
emergency;
e. Any
objection;
f. Any applicable time
requirement;
g. The existence of a
conflict of the schedules of counsel, parties, or witnesses;
h. The time limits of the request; and
i. Other relevant
factors.
2. The
presiding officer may require documentation of any grounds for
continuance.
L.
Hearing Procedures1. The presiding
officer presides at the hearing and may rule on motions, require briefs, and
issue such orders as will ensure the orderly conduct of the proceedings;
provided, however, any presiding officer other than the Director shall not
enter a dispositive order or proposed decision unless expressly authorized in
writing to do so.
2. All objections
must be made in a timely manner and stated on the record.
3. Parties have the right to participate or
to be represented by counsel in all hearings or pre-hearing conferences related
to their case.
4. Subject to terms
and conditions prescribed by the Administrative Procedure Act, parties have the
right to introduce evidence on issues of material fact, cross-examine witnesses
as necessary for a full and true disclosure of the facts, present evidence in
rebuttal, and, upon request by the agency, may submit briefs and engage in oral
argument.
5. The presiding officer
is charged with maintaining the decorum of the hearing and may refuse to admit,
or may expel, anyone whose conduct is disorderly.
M.
Order of Proceedings
The presiding officer will conduct the hearing in the following
manner:
1. The presiding officer will
give an opening statement, briefly describing the nature of the
proceedings.
2. The parties are to
be given the opportunity to present opening statements.
3. The parties will be allowed to present
their cases in the sequence determined by the presiding officer.
4. Each witness must be sworn or affirmed by
the presiding officer, or the court reporter, and be subject to examination and
cross-examination as well as questioning by the agency. The presiding officer
may limit questioning in a manner consistent with the law.
5. When all parties and witnesses have been
heard, parties may be given the opportunity to present final
arguments.
N.
Evidence1. The presiding officer
shall rule on the admissibility of evidence and may, when appropriate, take
official notice of facts in accordance with all applicable requirements of
law.
2. Stipulation of facts is
encouraged. The agency may make a decision based on stipulated facts.
3. Evidence in the proceeding must be
confined to the issues set forth in the hearing notice, unless the parties
waive their right to such notice or the presiding officer determines that good
cause justifies expansion of the issues. If the presiding officer decides to
admit evidence outside the scope of the notice, over the objection of a party
who did not have actual notice of those issues, that party, upon timely
request, will receive a continuance sufficient to prepare for the additional
issue and to permit amendment of pleadings.
4. A party seeking admission of an exhibit
must provide three (3) copies of any exhibit in a hearing before the agency.
The presiding officer must provide the opposing parties with an opportunity to
examine the exhibit prior to the ruling on its admissibility. All exhibits
admitted into evidence must be appropriately marked and be made part of the
record.
5. Any party may object to
specific evidence or may request limits on the scope of the examination or
cross-examination. A brief statement of the grounds upon which it is based
shall accompany such an objection. The objection, the ruling on the objection,
and the reasons for the ruling will be noted in the record. The presiding
officer may rule on the objection at the time it is made or may reserve the
ruling until the written decision.
6. Whenever evidence is ruled inadmissible,
the party offering that evidence may submit an offer of proof on the record.
The party making the offer of proof for excluded oral testimony will briefly
summarize the testimony or, with permission of the presiding officer, present
the testimony. If the excluded evidence consists of a document or exhibit, it
shall be marked as part of an offer of proof and inserted in the
record.
7. Irrelevant, immaterial,
and unduly repetitive evidence will be excluded. Any other oral or documentary
evidence, not privileged, may be received if it is of a type commonly relied
upon by reasonably prudent men and women in the conduct of their
affairs.
8. Reasonable inferences.
The finder of fact may base its findings of fact upon reasonable inferences
derived from other evidence received.
O.
Default
If a party fails to appear or participate in an administrative
adjudication after proper service of notice, the agency may proceed with the
hearing and render a decision in the absence of the party.
P.
Subpoenas
1. At the request of any party, the Director
of the Department of Labor shall issue subpoenas for the attendance of
witnesses at the hearing. The requesting party shall specify whether the
witness is also requested to bring documents and reasonably identify said
documents.
2. A subpoena may be
served by any person specified by law to serve process or by any person who is
not a party and who is eighteen (18) years of age or older. Delivering a copy
to the person named in the subpoena shall make service. Proof of service may be
made by affidavit of the person making service. The party seeking the subpoena
shall have the burden of obtaining service of the process and shall be charged
with the responsibility of tendering appropriate mileage fees and witness fees
pursuant to Rule
45, Arkansas Rules of Civil
Procedure. The witness must be served at least two days prior to the hearing.
For good cause, the agency may authorize the subpoena to be served less than
two days before the hearing.
3. Any
motion to quash or limit the subpoena shall be filed with the agency and shall
state the grounds relied upon.
Q.
Recording the Proceedings
The responsibility to record the testimony heard at a hearing
is borne by the agency. Upon the filing of a petition for judicial review, the
agency will provide a transcript of testimony taken before the agency. If the
agency is successful upon appeal, the agency may request that the court assess
the costs against the opposing party.
R.
Factors to be Considered in Imposing
Sanctions or Fines
In addition to any other considerations permitted by law, if
applicable, the agency in imposing any sanction or fine may consider the
following:
1. The nature and degree of
the misconduct for which the sanction is being sought.
2. The seriousness and circumstances
surrounding this misconduct.
3. The
loss or damage to clients or others.
4. The assurance of future
compliance.
5. The profit to the
wrongdoer.
6. The avoidance of
repetition.
7. Whether the conduct
was deliberate, intentional, or negligent.
8. The deterrent effect on others.
9. The conduct of the individual during the
course of the disciplinary proceeding.
10. Any prior enforcement or disciplinary
actions or sanctions, including warnings.
11. Matters offered in mitigation or
extenuation, except that a claim of disability or impairment resulting from the
use of alcohol or drugs may not be considered unless the individual
demonstrates that he or she is successfully pursuing in good faith a program of
recovery.
S.
Final Order
The agency will serve on the respondent a written order that
reflects the action taken by the agency. The order will include a recitation of
facts found based on testimony and other evidence presented and reasonable
inferences derived from the evidence pertinent to the issues of the case. It
will also state conclusions of law and directives or other disposition entered
against or in favor of the respondent.
The order will be served personally or by mail on the
respondent. If counsel represents respondent, service of the order on
respondent's counsel shall be deemed service on the respondent.
010.14-100
Minimum Wage and OvertimeA. The
Minimum Wage Act of the State of Arkansas is codified at Ark. Code Ann. §§
11-4-201
et seq. The Director of the Department of Labor is authorized
to promulgate administrative regulations for the administration and enforcement
of the law. Ark. Code Ann. §
11-4-209.
B.
Definitions
1. "Act" means the Minimum Wage Act of the
State of Arkansas, Ark. Code Ann. §§
11-4-201
et seq.;
2.
"Administrator" means the Administrator of the Labor Standards Division of the
Arkansas Department of Labor;
3.
"Agriculture" includes 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, 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. "Agriculture" also includes the
catching, taking, propagating, harvesting, cultivating, or farming of any kind
of fish, shellfish, crustacean, sponges, seaweeds, or other aquatic forms of
animal and vegetable life. "Agriculture" includes cotton ginning and work
performed as necessary and incidental to cotton ginning in an establishment
primarily engaged in the ginning of cotton, including all work exempt from
overtime pursuant to the provisions of
29
U.S.C. 213(h) and
(i);
4. "Department" means the Arkansas Department
of Labor;
5. "Director" means the
Director of the Department of Labor;
6. "Division" means the Labor Standards
Division of the Department of Labor;
7. "Employ" includes to suffer or permit to
work;
8. "Employee" includes any
individual employed by an employer, but does not include those individuals
specifically excluded by Ark. Code Ann. §
11-4-203(3)
and Rule 010.14 -104 and -105;
and
9. "Employer" includes any
individual, partnership, association, corporation, business trust, the State,
any political subdivision of the State, or any person or group of persons
acting directly or indirectly in the interest of an employer in relation to an
employee. The term "employer".
010.14-101
Rules Incorporated By
Reference
Throughout these rules for minimum wage and overtime, Rule
010.14 -100 et
seq., the Arkansas Department of Labor has adopted by reference and
incorporated herein certain sections or parts of the Code of Federal
Regulations (C.F.R.) or the United States Code (U.S.C.). In all cases,
references to volume 29 of the Code of Federal Regulations shall mean the July
2005 edition, specifically 29 C.F.R., Parts 500-899 (July 1, 2005). In all
cases, references to the United States Code means the U. S. C. as it existed on
March 1, 2006. These Rules do not include any later editions or amendments to
the United States Code or the Code of Federal Regulations. Copies of the
incorporated matter may be obtained at cost from the Arkansas Department of
Labor, Labor Standards Division or may be purchased directly from the U. S.
Government Printing Office. Copies of the incorporated matter may be viewed on
the website of the U. S. Department of Labor at:
http://www.dol.gov/esa/regs/cfr/main.htm and
http://www.dol.gov/esa/regs/statutes/whd/allfair.htm
010.14-102
Records To Be Kept By
EmployerA.
General
requirements1. Every employer shall
maintain and preserve payroll or other records which are true and accurate and
which contain the following information and data for each employee:
a. Name in full, as used for Social Security
recordkeeping purposes, and on the same record, any identifying symbol or
number used in place of name on any time, work, or payroll records;
b. Home address, including zip
code;
c. Date of birth, if under
19;
d. Sex and
occupation;
e. Time of day and day
of week on which the employee's workweek begins. A single notation will suffice
if the entire workforce in an establishment have the same workweek and workday
beginning;
f. Regular hourly rate
of pay for any workweek in which overtime compensation is due, as well as the
basis on which wages are paid, such as per hour, per day, per week, per piece
or rate of commission;
g. Hours
worked each workday and total hours worked each workweek;
h. Total daily or weekly straight time
earnings or wages due for hours worked during the workday or workweek,
exclusive of overtime compensation;
i. Total overtime compensation. This amount
excludes the straight- time earnings for overtime hours recorded under
010.14 -101(A)(1)(h)
above;
j. Total additions or
deductions from wages paid each pay period, as well as the nature of the items
which make up the additions or deductions;
k. Total wages paid each pay period; and
l. Date of payment and the pay
period covered by payment.
2. For employees working on fixed schedules,
an employer may maintain records showing instead of the hours worked each day
and each work week, the schedule of daily and weekly hours and a statement or
other method or recordkeeping that indicates that such hours were in fact
actually worked. In weeks in which more or less than the scheduled hours are
worked, the exact number of hours worked each day and each week must be
recorded.
3. Each employer shall
maintain and preserve the records required by this Rule for a period of at
least three (3) years.
4. No
particular or form of records is prescribed. The records must be accessible and
clear and identifiable. In the event records are maintained in format other
than paper, such as electronically or on microfilm, adequate projection,
viewing, or copying equipment must be available.
5. Each employer shall keep the records
required by this Rule safe and accessible at the place or places of employment
or in a central record-keeping office in Arkansas. In unusual circumstances, an
employer may petition the Director to maintain the records outside the state.
Such approval must be obtained in advance. In the event the Director approves
such records to be maintained outside the state, the employer shall make such
records available for inspection, transcription or copying by the division in
Arkansas within 72 hours following notice from the division.
6. Posting of notices. Every employer
employing an employee subject to the Act shall post and keep posted a notice
approved by the Director explaining and summarizing the requirements of the Act
and the regulations. Such notice shall be posted in a conspicuous and
accessible place in every establishment where such employees are
employed.
7. All records shall be
available for inspection, transcription or copying by the division.
B.
Special
circumstances1. Exempt from minimum
wage and overtime. With respect to employees exempt from both the minimum wage
and overtime provisions of the Act, an employer shall maintain and preserve
those records listed in Rule
010.14 -101(A)(1)(a) through
(e).
2. Exempt from overtime. With
respect to employees exempt from the overtime provisions of the Act pursuant to
Ark. Code Ann. §
11-4-211(e),
an employer shall maintain and preserve all those records listed in Rule
010.14 -101(A)(1), except those
outlined in paragraphs (f) and (i).
3. Tipped employees. With respect to each
tipped employee whose wages are determined pursuant to Ark. Code Ann. §
11-4-212,
the employer shall maintain and preserve payroll or other records containing
all the information and data required in Rule
010.14 -101(A)(1) and, in
addition, the following:
a. A symbol, letter
or other notation placed on the pay records identifying each employee whose
wage is determined in part by tips.
b. Weekly or monthly amount reported by the
employee, to the employer, of tips received (this may consist of reports made
by the employees to the employer on IRS Form 4070).
c. Amount by which the wages of each tipped
employee have been deemed to be increased by tips as determined by the employer
(not in excess of 58 percent of the applicable statutory minimum wage). The
amount per hour which the employer takes as a tip credit shall be reported to
the employee in writing each time it is changed from the amount per hour taken
in the preceding week.
d. Hours
worked each workday in any occupation in which the employee does not receive
tips, and total daily or weekly straight-time payment made by the employer for
such hours.
e. Hours worked each
workday in occupations in which the employee receives tips, and total daily or
weekly straight-time earnings for such hours.
4. Employees receiving board, lodging or
other facilities. In addition to other records required by this Rule, an
employer who makes a deduction from the wages of employees for board, lodging,
or other facilities pursuant to Ark. Code Ann. §
11-4-213
shall maintain and preserve records substantiating the cost of furnishing the
board, lodging or other facilities. Such records shall include itemized
accounts showing the nature and amount of any expenditures entering into the
computation of the costs.
5. In
addition to other records required by this Rule, an employer shall maintain and
preserve the following records as applicable:
a. any certificate of eligibility to pay a
sub-minimum wage to a full-time student pursuant to Ark. Code Ann. § 11-4-21(b)
and Rule 010.14 -102;
b. any permit or authorization to pay a
student-learner a sub-minimum wage pursuant to Ark. Code Ann. §
11-4-215
and Rule 010.14 -103; and
c. any permit or authorization to employ
handicapped persons at wages less that the applicable minimum wage pursuant to
Ark. Code Ann. §
11-4-214 and
Rule 010.14-104.
6.
Additional record-keeping requirements are contained in Rule 010.14-104 for
bona fide executive, administrative and professional employees, and in Rule
010.14-107 for employees of state and local government, including employees
engaged in fire protection or law enforcement activities.
C.
Recording working time
1. Differences between clock records and
actual hours worked. Time clocks are not required. In those cases where time
clocks are used, employees who voluntarily come in before their regular
starting time or remain after their closing time, do not have to be paid for
such periods provided, of course, that they do not engage in any work. Their
early or late clock punching may be disregarded. Minor differences between the
clock records and actual hours worked cannot ordinarily be avoided, but major
discrepancies should be discouraged since they raise a doubt as to the accuracy
of the records of the hours actually worked.
2. "Rounding'' practices. It has been found
that in some industries, particularly where time clocks are used, there has
been the practice for many years of recording the employees' starting time and
stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter
of an hour. Presumably, this arrangement averages out so that the employees are
fully compensated for all the time they actually work. For enforcement purposes
this practice of computing working time will be accepted, provided that it is
used in such a manner that it will not result, over a period of time, in
failure to compensate the employees properly for all the time they have
actually worked.
010.14-103
Employment of Full Time
Students at Sub-Minimum WagesA.
Conditions of employment1. An employer
may pay a full-time student a sub-minimum wage of not less than eight-five
percent (85%) of the applicable minimum wage rate, provided the following
conditions are met:
a. The employer has, in
advance of employment at less than the applicable minimum wage rate, a
full-time student certificate issued by the department;
b. The full-time student attends an
accredited institution of education within the State of Arkansas on a full-time
basis in accordance with the institution's definitions;
c. The employer does not employ the student
more than twenty (20) hours per week during times school is in session and not
more than forty (40) hours per week during times school is not in session; and
d. Notwithstanding paragraph (c)
above, the employer does not employ the student in violation of any applicable
child labor laws.
2. A
full-time student retains that status during the student's Christmas, summer
and other vacations.
3.
Notwithstanding paragraph 1(b) above, a full-time student residing in a border
town may attend an accredited institution of education within the border sister
state on a full-time basis and qualify for the sub-minimum wage allowed by this
rule provided the student is otherwise qualified.
B.
Full-time student
certificates1. An application for a
full-time student certificate shall be made on a form approved by the
department and shall require submission of verification from an accredited
institution of education within the State of Arkansas that the student is a
fulltime student in accordance with the institution's definition of
same.
2. A full-time student
certificate will be issued for a period of one year and shall not be valid upon
its expiration.
3. A full-time
student certificate issued by the U. S. Department of Labor pursuant to 29
C.F.R. 519 is acceptable in lieu of one issued by the Arkansas Department of
Labor, however the employer is responsible for complying with the other
conditions of employing full-time students at a sub-minimum wage rate provided
in Rule 010.14-102(A) above, including payment of wages at not less than
eighty-five percent (85%) of the minimum wage established by Ark. Code Ann. §
11-4-210.
010.14-104
Student Learners, Learners and Apprentices
An employer may employ a learner, a student learner, or an
apprentice at a sub-minimum wage, provided:
A. For learners and apprentices, the employer
has current and valid certification from the U. S. Department of Labor to
employ learners and apprentices at a sub-minimum wage pursuant to
29 C.F.R.
520.400 through
520.412
and pays wages to such learners and apprentices at a rate of not less than
eighty-five percent (85%) of the minimum wage rate established by Ark. Code
Ann. §
11-4-210(a);
and
B. For student learners, the
employer has current and valid certification from the U. S. Department of Labor
to employ student learners at a sub-minimum wage pursuant to
29 C.F.R.
520.500 through
520.508
and pays wages to such learners and apprentices at a rate of not less than
eighty-five percent (85%) of the minimum wage rate established by Ark. Code
Ann. §
11-4-210(a).
010.14-105
Employment of
Workers With Disabilities
A worker with a disability may be employed at a special minimum
wage rate pursuant to Ark. Code Ann. §
11-4-214, by
obtaining either certification and authorization for such employment from the
U. S. Department of Labor or from this division.
A.
Federal certification
A worker with a disability may be employed at a special minimum
wage rate pursuant to a special certificate issued for workers with
disabilities by the U. S. Department of Labor pursuant to 29 C.F.R. Part
525, provided the worker with a
disability is actually paid as authorized by the U. S. Department of
Labor.
B.
State
certification
The division will issue a state certificate of authorization to
employ a worker with a disability at a special minimum wage rate under the same
terms and conditions as the U. S. Department of Labor and for such purpose the
provisions of 29 C.F.R., Part
525 (July 2005) are adopted by
reference and incorporated herein.
010.14-106
Coverage and
ExemptionsA.
Employer coverage
and exemption from minimum wage and overtime
1. The Act defines "employer" to include "any
individual, partnership, association, corporation, business trust, the State,
any political subdivision of the State, or any person or group of persons
acting directly or indirectly in the interest of an employer in relation to an
employee". Ark. Code Ann. §
11-4-203(4)(A).
a. An entity, including an individual,
partnership, association, corporation, business trust, governmental agency, or
any person or group of persons, acts indirectly in the interest of an employer
in relation to an employee when such entity or entities conduct related
activities, either through unified operations or common control.
b. Such related activities need not occur in
the same establishment or facility.
2. The Act defines "employer" to exclude any
individual, partnership, association, corporation, business trust, or any
person or group of persons acting directly or indirectly in the interest of an
employer in relation to an employee for any workweek in which fewer than four
(4) employees are employed. Ark. Code Ann. §
11-4-203(4)(B).
a. Employees who are exempt from the Act
pursuant to Ark. Code Ann. §
11-4-203(3)
or Rule 010.14-104(B) shall be counted as employees for the purpose of
determining whether an employer employs fewer than four (4)
employees.
B.
Employee exemptions from minimum wage and overtime
1. The Act does not apply to any individual
employed in a bona fide executive, administrative or professional capacity or
as an outside commission-paid salesperson who customarily performs his or her
services away from his or her employer's premises taking orders for goods or
services. Ark. Code Ann. §
11-4-203(3)(A).
a. For the purpose of defining and delimiting
this exemption, the director adopts by reference and incorporates herein 29
C.F.R. Part
541 (July 1, 2005).
b. For the purposes of this exemption,
computer employees covered by
29 C.F.R.
541.400 through .402 are hereby defined as
"professional employees".
c. For
the purposes of this exemption, highly compensated employees covered by
29 C.F.R.
541.601 are hereby defined as an executive,
administrative or professional employee if the employee customarily and
regularly performs any one or more of the exempt duties or responsibilities of
an executive, administrative or professional employee.
d. For the purposes of this exemption,
executive or administrative employee includes any individual who:
(i) holds public elective office in this
state; or
(ii) is selected by the
elected official to be a member of his personal staff and is directly
supervised by the elected official; or
(iii) is appointed by the elected official to
serve on a policy making level; or
(iv) is an immediate adviser to the elected
official with respect to the constitutional or legal powers of his
office;
e.
Notwithstanding the provisions of Rule
010.14 -104(B)(1)(a) above, the
salary level test of
29 C.F.R.
541.100(a)(1) (executive
employees);
29 C.F.R
541.200(a)(1)
(administrative employees);
29 C.F.R.
541.300(a)(1) (professional
employees); and
29 C.F.R.
541.400(b) (computer
employees) as it applies to charitable and religious organizations, and
employers who have gross annual sales of less than $500,000 per year, shall be
at a rate of at least $360 per week on a salary or fee basis.
f. It is recognized that the primary duties
of the following legislative employees require the employees to customarily and
regularly perform tasks or work involving the exercise of discretion and
independent judgment with respect to matters of significance in the course of
assisting members of the General Assembly, and they are professional,
executive, or administrative employees for the purpose of this exemption:
legislative attorneys, legislative auditors, legislative editors, and
legislative analysts. Nothing in this provision limits the application of other
exemptions to legislative employees. "Legislative employee" has the same
meaning as defined by Ark. Code Ann. §
10-2-129.
2. The Act does not apply to
students performing services for any school, college, or university in which
they are enrolled and are regularly attending classes. Ark. Code Ann. §
11-4-203(3)(B).
3. The Act does not apply to any individual
employed by the United States government. Ark. Code Ann. §
11-4-203(3)(C).
4. The Act does not apply to any individual
engaged in the activities of any educational, charitable, religious, or
nonprofit organization where the employer- employee relationship does not in
fact exist or where the services are rendered to the organizations
gratuitously. Ark. Code Ann. §
11-4-203(3)(D).
a. This exemption does not apply to an
individual performing services for an employer engaged in a for-profit
enterprise in return, exchange or in anticipation of a donation or compensation
to the educational, charitable, religious, or nonprofit organization.
5. The Act does not apply to any
bona fide independent contractor. Ark. Code Ann. §
11-4-203(3)(E).
6. The Act does not apply to any individual
employed by an agricultural employer who did not use more than 500 man-days of
agricultural labor in any calendar quarter of the preceding calendar year. Ark.
Code Ann. §
11-4-203(3)(F).
7. The Act does not apply to the parent,
spouse, child or other member of an agricultural employer's immediate family.
Ark. Code Ann. §
11-4-203(3)(G).
8. The Act does not apply to an individual
who:
a. is employed as a hand-harvest laborer
and is paid on a piece-rate basis in an operation which has been, and is
customarily and generally recognized as having been, paid on a piece-rate basis
in the region of employment;
b.
commutes daily from his or her permanent residence to the farm on which he or
she is so employed; and
c. has
been employed in agriculture fewer than thirteen (13) weeks during the
preceding calendar year.
Ark. Code Ann. §
11-4-203(3)(H).
9. The Act does not
apply to a migrant worker who:
a. is sixteen
(16) years of age or under and is employed as a hand-harvest laborer;
b. is paid on a piece-rate basis in an
operation which has been, and is customarily and generally recognized as having
been, paid on a piece-rate basis in the region of employment;
c. is employed on the same farm as his or her
parent(s); and
d. is paid the same
piece-rate as employees over age sixteen (16) years are paid on the same farm.
Ark. Code Ann. §
11-4-203(3)(I).
10. The Act does not
apply to any employee principally engaged in the range production of livestock.
Ark. Code Ann. §
11-4-203(3)(J).
11. The Act does not apply to any employee
employed in planting or tending trees, cruising, surveying or felling timber or
in preparing or transporting logs or other forestry products to the mill,
processing plants or railroad or other transportation terminal if the number of
employees employed by his or her employer in the forestry or lumbering
operations does not exceed eight (8). Ark. Code Ann. §
11-4-203(3)(K).
12. The Act does not apply to any employee
employed by a nonprofit recreational or educational camp that does not operate
for more than seven (7) months in any calendar year. Ark. Code Ann. §
11-4-203(3)(L).
13. The Act does not apply to an employee of
a nonprofit child welfare agency who serves as a houseparent who is:
a. directly involved in caring for children
who reside in residential facilities of the nonprofit child welfare agency and
who are orphans, in foster care, abused, neglected, abandoned, homeless, in
need of supervision or otherwise in crisis situations that lead to out-of-home
placements; and
b. compensated at
an annual rate of not less than thirteen thousand dollars ($13,000) or at an
annual rate of not less than ten thousand dollars ($10,000) if the employee
resides in the residential facility and receives board and lodging at no cost.
Ark. Code Ann. §
11-4-203(3)(M).
14. The Act shall not
apply to any employee employed in connection with the publication of any
weekly, semiweekly, or daily newspaper with a circulation of less than four
thousand the major part of which circulation is within the county where
published or counties contiguous thereto. See
29
U.S.C. 213(a)(8).
15. The Act shall not apply to any employee
employed on a casual basis in domestic service employment to provide
babysitting services or any employee employed in domestic service employment to
provide companionship services for individuals who (because of age or
infirmity) are unable to care for themselves. See
29
U.S.C. 213(a)(15). For the
purposes of defining these terms and in order to implement, administer and
enforce this exemption, the director adopts by reference and incorporates
herein 29 C.F.R. Part
552 (July 1, 2005).
16. The Act shall not apply to any employee
engaged in the delivery of newspapers to the consumer. See
29
U.S.C. 213(d).
17. The Act shall not apply to any homeworker
engaged in the making of wreaths composed principally of natural holly, pine,
cedar or other evergreens (including the harvesting of the evergreens or other
forest products used in making such wreaths). See
29
U.S.C. 213(d).
C.
Employee exemptions from
overtime only1. The following
employees are exempt from the overtime provisions of Ark. Code Ann. §
11-4-211(a):
a. any employee of an agricultural
employer;
b. any employee with
respect to who the U.S. Secretary of Transportation has power to establish
qualifications and maximum hours of service pursuant to
49
U.S.C. 31502;
c. any employee of an employer engaged in the
operation of a rail carrier subject to 49 U.S.C. part A of subtitle
IV;
d. any employee of a carrier by
air subject to the provisions of title II of the federal Railway Labor
Act;
e. any individual employed as
an outside buyer of poultry, eggs, cream, or milk in their raw or natural
state;
f. any employee employed as
a seaman;
g. any employee employed
as an announcer, news editor, or chief engineer by a radio or television
station the major studio of which is located
(i) in a city or town of one hundred thousand
population or less, according to the latest available decennial census figures
as compiles by the U. S. Bureau of the Census, except where such city or town
is part of a standard metropolitan statistical area, as defined and designated
by the U. S. Office of Management and Budget which has a total population in
excess of one hundred thousand, or
(ii) in a city or town of twenty-five
thousand population or less which is part of such an area but is at least 40
airline miles from the principal city in such an area;
h. any salesman:
(i) partsman, or mechanic primarily engaged
in selling or servicing automobiles, trucks, or farm implements, if he is
employed by a non-manufacturing establishment primarily engaged in the business
of selling such vehicles or implements to the ultimate purchaser; or
(ii) primarily engaged in selling trailers,
boats, or aircraft, if he is employed by a non-manufacturing establishment
primarily engaged in the business of selling, trailers, boats, or aircraft to
the ultimate purchaser;
i. any employee employed as a driver or
driver's helper making local deliveries, who is compensated for such employment
on the basis of trip rates, or other delivery payment plan;
j. any employee employed in connection with
the operation or maintenance of ditches, canals, reservoirs, or waterways, not
owned or operated for profit, or operated on a sharecrop basis, and which are
used exclusively for supply and storing of water at least ninety percent (90%)
of which was ultimately delivered for agricultural purposes during the
preceding calendar year;
k. any
employee employed in connection with livestock auction operations, provided
such employee is primarily employed during the week by the same employer in
agriculture and is paid for his employment in connection with such livestock
auction operations at a rate not less than the minimum wage rate prescribed by
Ark. Code Ann. §
11-4-210(a);
l. any employee employed within the area of
production by an establishment commonly recognized as a country elevator,
including such an establishment which sells products and services used in the
operation of a farm if no more than five employees are employed in the
establishment in such operations;
m. any employee engaged in the processing of
maple sap into sugar (other than refined sugar) or syrup;
n. any employee engaged:
(i) in the transportation and preparation for
transportation of fruits and vegetables, whether or not performed by the
farmer, from the farm to a place of first processing or first marketing within
the state; or
(ii) in
transportation, whether or not performed by the farmer, between the farm and
any point within the state of persons employed or to be employed in the
harvesting of fruits or vegetables;
o. any driver employed by an employer engaged
in the business of operating taxicabs;
p. any employee of a public agency who in any
workweek is employed in fire protection activities or any employee who in any
workweek is employed in law enforcement activities (including security
personnel in correction institutions or jails), if the public agency employs
during the workweek less than five (5) employees in fire protection or law
enforcement activities, as the case may be;
q. any employee who is employed in domestic
service in a household and who resides in such household;
r. any employee of an amusement or
recreational establishment located in a national park or national forest or on
land in the National Wildlife System if such employee:
(i) is an employee of a private entity
engaged in providing services or facilities in such location, and
(ii) receives compensation for employment in
excess of 56 hours in any workweek at a rate not less than one and one-half (1
1/2) times the regular rate at which he is employed; and
s. a criminal investigator who is paid
availability pay under
5 U.S.C.
5545a.
D.
Partial overtime exemptions-public
agencies1. In lieu of overtime
compensation, Ark. Code Ann. §
11-4-211(g)
provides that the State or any political subdivision of the State may award
compensatory time off at a rate of not less than one and one-half (1 1/2 )
hours for each hour of employment for which overtime compensation would
otherwise be required. The compensatory time off may be provided only:
a.
(i)
Pursuant to applicable provisions of a collective bargaining agreement,
memorandum of understanding or other agreement between the public agency and
representatives of such employees; or
(ii) In the case of an employee not covered
by Rule 010.14 -104(D)(1)(a)(i) above, an
agreement or understanding arrived at between the employer and the employee
before the performance of the work; and
b. If the employee has not terminated
employment and has not accrued compensatory time in excess of the following:
(i) Four hundred eighty (480) hours for
police, firefighters, emergency response personnel and employees engaged in
seasonal activities; or
(ii) Two
hundred forty (240) hours for any public employee not otherwise exempt or
covered by Rule
010.14 -104(D)(1)(b)(i)
above.
2.
Ark. Code Ann. §
11-4-211(f)
provides that no public agency shall be deemed to have violated the overtime
provisions of the Act with respect to the employment of any employee in fire
protection activities or in law enforcement activities, including security
personnel in correctional institutions, provided that the public agency pays
overtime pay in compliance with
29
U.S.C. 207(k) as it exists
on March 1, 2006.
3. In order to
implement, administer and enforce the provisions of Ark. Code Ann. §
11-4-211(f) and
(g), as well as Rule
010.14 -106(D)(1) and (2) above,
the director adopts by reference and incorporates herein 29 C.F.R. Part
553 (July 1, 2005).
010.14-107
Wage
Payments
A.
Generally
1. Payment of wages for minimum wage or
overtime shall be made in currency, check drawn on an account with sufficient
funds or by electronic deposit into an employee's account in compliance with
Ark. Code Ann. §
11-4-402.
2. Payment of wages shall be made free and
clear and must be paid finally and unconditionally.
3. Special rules apply for tipped employees
whose employer takes a credit against the minimum wage; employees who receive
board, lodging or other facilities for which an employer takes credit against
the minimum wage; and for public employees who receive compensatory time off in
lieu of overtime pursuant to these Rules and the Act.
B.
Deductions from minimum wage
1. An employer may not make deductions from
the minimum wage and overtime wages required by Ark. Code Ann. §§
11-4-210
and -211 except those authorized by the Rules, deductions authorized or
required by law, and deductions not otherwise prohibited which are for the
employee's benefit and authorized by the employee in writing.
2. An employer may not make deductions from
the applicable minimum wage rate for such items, including but not limited to
the following: spoilage or breakage; cash or inventory shortages or losses; and
fines or penalties for lateness, misconduct, or quitting by an employee without
notice.
C.
Payments to third persons1. Taxes.
Taxes which are assessed against the employee and which are collected by the
employer and forwarded to the appropriate governmental agency are included as
wages paid to the employee. No deduction may be made for any tax or share of a
tax which the law requires to be borne by the employer.
2. Court order. Where an employer is legally
obliged by order of a court of competent jurisdiction to pay a sum for the
benefit or credit of the employee to a creditor, trustee, or other third party,
such as a wage garnishment, wage attachment, income withholding order for child
support, or bankruptcy proceeding, payment to the third person is equivalent to
payment to the employee, provided that neither the employer nor any person
acting in his behalf or in his interest derives any profit or benefit from the
transaction.
3. Wage assignments.
Where an employer is directed by a voluntary wage assignment or order of the
employee to pay a sum for the benefit of the employee to a third party, payment
to the third person is equivalent to payment to the employee, provided that
neither the employer nor any person acting in his behalf or in his interest
derives any profit or benefit from the transaction. This includes sums
authorized by the employee in writing for such items as U.S. savings bonds,
charitable contributions, insurance premiums (paid to independent insurance
companies where the employer is under no obligation to supply the insurance and
derives, directly or indirectly, no benefit or profit from it), and union
dues.
D.
Allowance for board, lodging, apparel, or other items and services
1. An employer of an employee engaged in any
occupation in which board, lodging, apparel or other items and services are
customarily and regularly furnished to the employee for his or her benefit
shall be entitled to an allowance against the minimum wage for the reasonable
value of board , lodging, apparel or other services in an amount not to exceed
thirty cents (30¢) per hour. This allowance shall not be included in the wages
for hours worked in excess of forty (40) hours per workweek.
2. Board, lodging, apparel or other items and
services are not "furnished" to the employee unless the employee receives the
benefit and his acceptance is voluntary and uncoerced. For example, an
allowance can not be taken for meals not actually eaten.
3. It does not matter whether the employer
calculates the allowance as additions to or deductions from wages.
4. If it is necessary to determine
"reasonable value", the division will follow the provisions of determining
"reasonable cost" within the meaning of
29 C.F.R.
531.33 (July 1, 2005). "Reasonable value"
does not include a profit to the employer and is not more than the actual cost
to the employer of the board, lodging, apparel or other item or
service.
5. The employer is not
entitled to an allowance for the cost of board, lodging, apparel or other items
and services furnished to the employee, but primarily for the benefit of the
employer. Apparel that has a company or business logo shall be considered
primarily for the benefit of the employer.
6. The employer is not entitled to an
allowance for the cost of board, lodging apparel or other items and services
that are required by the employer as a condition of employment. For example, if
an employer requires as a condition of employment, that the employee reside on
the employer's premises, a lodging allowance is unavailable to the
employer.
E.
Tipped employees1. Every employer of
an employee engaged in any occupation in which gratuities have been customarily
and usually constituted and have been recognized as a part of remuneration for
hiring purposes shall be entitled to an allowance for gratuities as part of the
hourly wage rate provided in Ark. Code Ann. §
11-4-210
in an amount not to exceed 58% of the minimum wage rate established by Ark.
Code Ann. §
11-4-210,
provided that the employee actually received that amount in gratuities and that
the application of the gratuity allowance results in payment of wages other
than gratuities to the tipped employees, including full-time students subject
to the provisions of Ark. Code Ann. §
11-4-210,
of no less than 42% of the minimum wage rate. If the minimum wage rate is
$6.25, then the tip credit is $3.63 and the cash wage is $2.62.
2. Conditions for taking the tip credit.
a. The tip credit is only available for those
occupation in which tips have been "customarily and usually" recognized as part
of the remuneration for hiring purposes. This includes waiters, waitresses,
bellhops, beauty operators, and barbers, provided they actually receive and
retain tips. For any other occupation, it will be "customarily and usually"
recognized as part of the remuneration for hiring purposes if the employee
actually receives tips in excess of $20 per month.
b. The tip credit may be taken only for hours
worked by the employee in an occupation in which he qualifies as a "tipped
employee".
i. Under employment agreements or
practices requiring tips to be turned over or credited to the employer to be
treated by him as part of his gross receipts, the employer must pay the
employee the full minimum hourly wage rate because the employee is not a
"tipped employee".
ii. Dual jobs.
Whenever an employee is required to work twenty minutes or more in any
occupation in which gratuities have not been recognized as part of the
remuneration for hiring purposes, the rate for the entire hour shall be at
least the applicable minimum wage rate without an tip credit.
3. Payments which
constitute tips.
a. A tip is a sum presented
by a customer as a gift or gratuity in recognition of some service performed.
It is to be distinguished from payment of a charge, if any, made for the
service. A compulsory charge for service, such as 10% of the amount of the
bill, imposed on a customer by an employer's establishment, is not a tip and,
even if distributed by the employer to his employees, cannot be counted as a
tip.
b. In addition to cash, sums
presented by customer which an employee keeps as his own, tips received by an
employee include, within the meaning of the Act, amounts paid by bank check or
other negotiable instrument payable at par and amounts transferred by the
employer to the employee pursuant to direction from credit customers who
designate amounts to be added to their bills as tips. Special gifts in forms
other than money or its equivalent as above described, such as tickets, passes
or merchandise, are not counted as tips.
c. Tip pooling. Where employees practice tip
splitting, as where waiters give a portion of their tips to the busboys, both
the amounts retained by the waiters and those given the busboys are considered
tips of the individual employees who retain them. Similarly, where an
accounting is made to an employer for his information only or in furtherance of
a pooling arrangement whereby the employer redistributes the tips to the
employees upon some basis to which they have mutually agreed among themselves,
the amounts received and retained by each individual as his own are counted as
his tips.
4. The tip
credit is in addition to any credit for board, lodging, apparel or other items
or services pursuant to Ark. Code Ann. §
11-4-213
and Rule 010.14 -107(C).
5. Overtime payments. When overtime is worked
by a tipped employee, his regular rate of pay is determined by dividing his
total remuneration for employment in any workweek by the total number of hours
actually worked by him in that workweek. A tipped employee's regular rate of
pay includes the amount of tip credit taken by the employer (not in excess of
58% of the minimum wage rate); any allowance taken by the employer for board,
lodging, apparel or other items and services as authorized by Ark. Code Ann. §
11-4-213
and Rule 010.14-107(C); and the cash wages paid including commissions and
certain bonuses or other payments paid by the employer. Any tips received by
the employee in excess of the tip credit need not be included in the regular
rate of pay for determining overtime payments.
6. Failure to maintain tip records. It is the
employer's obligation to maintain tip records as required by Rule
101.14 -102(B)(3) if the employer
utilizes a tip credit or allowance. If the employer fails to maintain such
records, the employer is not entitled to a tip credit or allowance against the
minimum wage unless the employer can prove that the employee against who a tip
credit or allowance is sought actually received and retained each workweek tips
in an amount equal to or greater than the tip credit or allowance
claimed.
F.
Effect
of collective bargaining agreements
Allowances as part payment of the applicable minimum wage for
gratuities, board, lodging, apparel or other items and services shall not be
permitted to the extent such deductions from cash wages are not permitted under
the terms of a collective bargaining agreement applicable to an
employee.
010.14-108
Hours Worked
A.
Employees "suffered or permitted" to
work1. Work not requested but suffered
or permitted is work time. For example, an employee may voluntarily continue to
work at the end of the shift. He may be a pieceworker, he may desire to finish
an assigned task or he may wish to correct errors, paste work tickets, prepare
time reports or other records. The reason is immaterial. The employer knows or
has reason to believe that he is continuing to work and the time is working
time.
2. The rule is also
applicable to work performed away from the premises or the job site, or even at
home. If the employer knows or has reason to believe that the work is being
performed, he must count the time as hours worked.
3. In all such cases it is the duty of the
management to exercise its control and see that the work is not performed if it
does not want it to be performed. It cannot sit back and accept the benefits
without compensating for them. The mere promulgation of a rule against such
work is not enough. Management has the power to enforce the rule and must make
every effort to do so.
B.
Waiting Time
1. Generally. Whether waiting time is time
worked under the Act depends upon particular circumstances. The determination
involves a scrutiny and construction of the agreements between particular
parties, appraisal of their practical construction of the working agreement by
conduct, consideration of the nature of the service, and its relation to the
waiting time, and all of the circumstances. Facts may show that the employee
was engaged to wait or they may show that he waited to be engaged.
2. On duty. A stenographer who reads a book
while waiting for dictation, a messenger who works a crossword puzzle while
awaiting assignments, fireman who plays checkers while waiting for alarms and a
factory worker who talks to his fellow employees while waiting for machinery to
be repaired are all working during their periods of inactivity. The rule also
applies to employees who work away from the plant. For example, a repair man is
working while he waits for his employer's customer to get the premises in
readiness. The time is worktime even though the employee is allowed to leave
the premises or the job site during such periods of inactivity. The periods
during which these occur are unpredictable. They are usually of short duration.
In either event the employee is unable to use the time effectively for his own
purposes. It belongs to and is controlled by the employer. In all of these
cases waiting is an integral part of the job. The employee is engaged to
wait.
3. Off duty. Periods during
which an employee is completely relieved from duty and which are long enough to
enable him to use the time effectively for his own purposes are not hours
worked. He is not completely relieved from duty and cannot use the time
effectively for his own purposes unless he is definitely told in advance that
he may leave the job and that he will not have to commence work until a
definitely specified hour has arrived. Whether the time is long enough to
enable him to use the time effectively for his own purposes depends upon all of
the facts and circumstances of the case.
4. On-call time. An employee who is required
to remain on call on the employer's premises or so close thereto that he cannot
use the time effectively for his own purposes is working while ``on call''. An
employee who is not required to remain on the employer's premises but is merely
required to leave word at his home or with company officials where he may be
reached is not working while on call.
C.
Rest and meal periods
1. Rest periods of short duration, running
from 5 minutes to about 20 minutes, are common in industry. They promote the
efficiency of the employee and are customarily paid for as working time. They
must be counted as hours worked. Compensable time of rest periods may not be
offset against other working time such as compensable waiting time or on-call
time.
2. Bona fide meal periods are
not worktime. Bona fide meal periods do not include coffee breaks or time for
snacks. These are rest periods. The employee must be completely relieved from
duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is
long enough for a bona fide meal period. A shorter period may be long enough
under special conditions. The employee is not relieved if he is required to
perform any duties, whether active or inactive, while eating. For example, an
office employee who is required to eat at his desk or a factory worker who is
required to be at his machine is working while eating. It is not necessary that
an employee be permitted to leave the premises if he is otherwise completely
freed from duties during the meal period.
D.
Sleeping time and certain other
activities1. Under certain conditions
an employee is considered to be working even though some of his time is spent
in sleeping or in certain other activities.
2. Less than 24-hour duty. An employee who is
required to be on duty for less than 24 hours is working even though he is
permitted to sleep or engage in other personal activities when not busy. A
telephone operator, for example, who is required to be on duty for specified
hours is working even though she is permitted to sleep when not busy answering
calls. It makes no difference that she is furnished facilities for sleeping.
Her time is given to her employer. She is required to be on duty and the time
is worktime.
3. Duty of 24 hours or
more.
a. Where an employee is required to be
on duty for 24 hours or more, the employer and the employee may agree to
exclude bona fide meal periods and a bona fide regularly scheduled sleeping
period of not more than 8 hours from hours worked, provided adequate sleeping
facilities are furnished by the employer and the employee can usually enjoy an
uninterrupted night's sleep. If sleeping period is of more than 8 hours, only 8
hours will be credited. Where no expressed or implied agreement to the contrary
is present, the 8 hours of sleeping time and lunch periods constitute hours
worked.
b. Interruptions of sleep.
If the sleeping period is interrupted by a call to duty, the interruption must
be counted as hours worked. If the period is interrupted to such an extent that
the employee cannot get a reasonable night's sleep, the entire period must be
counted. If the employee cannot get at least 5 hours' sleep during the
scheduled period the entire time is working time.
4. Residing on the employer's premises or
working at home.
An employee who resides on his employer's premises on a
permanent basis or for extended periods of time is not considered as working
all the time he is on the premises. Ordinarily, he may engage in normal private
pursuits and thus have enough time for eating, sleeping, entertaining, and
other periods of complete freedom from all duties when he may leave the
premises for purposes of his own. It is, of course, difficult to determine the
exact hours worked under these circumstances and any reasonable agreement of
the parties which takes into consideration all of the pertinent facts will be
accepted. This rule would apply, for example, to the pumper of a stripper well
who resides on the premises of his employer and also to a telephone operator
who has the switchboard in her own home.
E.
Lectures, meetings and training
programs
Attendance at lectures, meetings, training programs and similar
activities need not be counted as working time if the following four criteria
are met:
1. Attendance is outside of
the employee's regular working hours;
2. Attendance is in fact voluntary;
3. The course, lecture, or meeting is not
directly related to the employee's job; and
4. The employee does not perform any
productive work during such attendance.
F.
Traveltime
1. Home to work; ordinary situation.
An employee who travels from home before his regular workday
and returns to his home at the end of the workday is engaged in ordinary home
to work travel which is a normal incident of employment. This is true whether
he works at a fixed location or at different job sites. Normal travel from home
to work is not worktime.
2.
Home to work in emergency situations.
There may be instances when travel from home to work is
overtime. For example, if an employee who has gone home after completing his
day's work is subsequently called out at night to travel a substantial distance
to perform an emergency job for one of his employer's customers all time spent
on such travel is working time. The Divisions are taking no position on whether
travel to the job and back home by an employee who receives an emergency call
outside of his regular hours to report back to his regular place of business to
do a job is working time.
3. Home to work on special one-day assignment
in another city.
A problem arises when an employee who regularly works at a
fixed location in one city is given a special 1-day work assignment in another
city. For example, an employee who works in Washington, DC, with regular
working hours from 9 a.m. to 5 p.m. may be given a special assignment in New
York City, with instructions to leave Washington at 8 a.m. He arrives in New
York at 12 noon, ready for work. The special assignment is completed at 3 p.m.,
and the employee arrives back in Washington at 7 p.m. Such travel cannot be
regarded as ordinary home-to-work travel occasioned merely by the fact of
employment. It was performed for the employer's benefit and at his special
request to meet the needs of the particular and unusual assignment. It would
thus qualify as an integral part of the ``principal'' activity which the
employee was hired to perform on the workday in question; it is like travel
involved in an emergency call (described in Rule
010.14 -108(G)(2)), or like
travel that is all in the day's work (see Rule 010.14-108(G)(4)). All the time
involved, however, need not be counted. Since, except for the special
assignment, the employee would have had to report to his regular work site, the
travel between his home and the railroad depot may be deducted, it being in the
``home-to-work'' category. Also, of course, the usual meal time would be
deductible.
4. Travel that
is all in the day's work.
Time spent by an employee in travel as part of his principal
activity, such as travel from job site to job site during the workday, must be
counted as hours worked. Where an employee is required to report at a meeting
place to receive instructions or to perform other work there, or to pick up and
to carry tools, the travel from the designated place to the work place is part
of the day's work, and must be counted as hours worked regardless of contract,
custom, or practice. If an employee normally finishes his work on the premises
at 5 p.m. and is sent to another job which he finishes at 8 p.m. and is
required to return to his employer's premises arriving at 9 p.m., all of the
time is working time. However, if the employee goes home instead of returning
to his employer's premises, the travel after 8 p.m. is home-to-work travel and
is not hours worked.
5.
Travel away from home community.
Travel that keeps an employee away from home overnight is
travel away from home. Travel away from home is clearly worktime when it cuts
across the employee's workday. The employee is simply substituting travel for
other duties. The time is not only hours worked on regular working days during
normal working hours but also during the corresponding hours on nonworking
days. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday
through Friday the travel time during these hours is worktime on Saturday and
Sunday as well as on the other days. Regular meal period time is not counted.
As an enforcement policy the Divisions will not consider as worktime that time
spent in travel away from home outside of regular working hours as a passenger
on an airplane, train, boat, bus, or automobile.
6. When private automobile is used in travel
away from home community.
If an employee is offered public transportation but requests
permission to drive his car instead, the employer may count as hours worked
either the time spent driving the car or the time he would have had to count as
hours worked during working hours if the employee had used the public
conveyance.
7. Work
performed while traveling.
Any work which an employee is required to perform while
traveling must, of course, be counted as hours worked. An employee who drives a
truck, bus, automobile, boat or airplane, or an employee who is required to
ride therein as an assistant or helper, is working while riding, except during
bona fide meal periods or when he is permitted to sleep in adequate facilities
furnished by the employer.
010.14-109
Overtime Compensation
A. For the purposes of determining and
calculating overtime pay requirements and what constitutes an employee's
"regular rate" of pay, the agency adopts and incorporates herein the provisions
of 29 C.F.R. 778 (July 1, 2005) as applicable.
B.
Hospitals and residential care
facilities
Hospitals and residential care facilities shall be deemed in
compliance with Ark. Code Ann. §
11-4-211
provided they comply with the provisions for computing overtime pursuant to
29
U.S.C. §
207(j) and 29
C.F.R. 778.601 (July 1, 2005), which are adopted and incorporated
herein.
C.
Local
enterprise engaged in the wholesale or bulk distribution of petroleum
products.
An independently owned and controlled local enterprise engaged
in the wholesale or bulk distribution of petroleum products shall be deemed in
compliance with Ark. Code Ann. §
11-4-211
provided it complies with the provisions of determining overtime pursuant to
29
U.S.C. §
207(b) and 29
C.F.R. 794.101 through 794.144 (July 1, 2005), which are adopted and
incorporated herein.
D.
Employers subject to collective bargaining agreement covered by
29
U.S.C. §
207(b).
Employers subject to collective bargaining agreement covered by
29
U.S.C. §
207(b) shall be
deemed in compliance with Ark. Code Ann. §
11-4-211
provided they comply with the provisions of determining overtime pursuant to
29
U.S.C. §
207(b) and 29
C.F.R. 778.602, which are adopted and incorporated herein.
E.
Employment necessitating irregular
hours of work.
Employers who pay overtime for work covered by the provisions
of 29 U.S.C. §
207(f) shall be deemed in
compliance with Ark. Code Ann. §
11-4-211
provided they comply with the provisions of
29
U.S.C. §
207(f) and 29
C.F.R. 778.402 through 778.421 (July 1, 2005) which are adopted and
incorporated herein.
F.
Employment at piece rates.
Employers who pay on a piece rate basis for overtime pursuant
to the provisions of
29
U.S.C. §
207(g) shall be
deemed in compliance with Ark. Code Ann. §
11-4-211
provided they comply with the provisions of
29
U.S.C. §
207(g) and 29
C.F.R. Part
548 (July 1, 2005), which are
adopted and incorporated herein.
G.
Retail or service establishment
whose employees are compensated principally by commissions.
Retail or service establishments shall be deemed in compliance
with Ark. Code Ann. §
11-4-211
provided they comply with the provisions of
29
U.S.C. §
207(i) and 29
C.F.R. 779.410 through 779.421 (July 1, 2005), which are adopted and
incorporated herein.
010.14-110
Joint Employment
A. A single individual may stand in the
relation of an employee to two or more employers at the same time since there
is nothing in the Act which prevents an individual employed by one employer
from also entering into an employment relationship with a different employer. A
determination of whether the employment by the employers is to be considered
joint employment or separate and distinct employment for purposes of the Act
depends upon all the facts in the particular case. If all the relevant facts
establish that two or more employers are acting entirely independently of each
other and are completely disassociated with respect to the employment of a
particular employee, who during the same workweek performs work for more than
one employer, each employer may disregard all work performed by the employee
for the other employer (or employers) in determining his own responsibilities
under the Act. On the other hand, if the facts establish that the employee is
employed jointly by two or more employers, i.e., that
employment by one employer is not completely disassociated from employment by
the other employer(s), all of the employee's work for all of the joint
employers during the workweek is considered as one employment for purposes of
the Act. In this event, all joint employers are responsible, both individually
and jointly, for compliance with all of the applicable provisions of the Act,
including the overtime provisions, with respect to the entire employment for
the particular workweek. In discharging the joint obligation each employer may,
of course, take credit toward minimum wage and overtime requirements for all
payments made to the employee by the other joint employer or
employers.
B. Where the employee
performs work which simultaneously benefits two or more employers, or works for
two or more employers at different times during the workweek, a joint
employment relationship generally will be considered to exist in situations
such as:
1. Where there is an arrangement
between the employers to share the employee's services, as, for example, to
interchange employees; or
2. Where
one employer is acting directly or indirectly in the interest of the other
employer (or employers) in relation to the employee; or
3. Where the employers are not completely
disassociated with respect to the employment of a particular employee and may
be deemed to share control of the employee, directly or indirectly, by reason
of the fact that one employer controls, is controlled by, or is under common
control with the other employer.
010.14-111
Enforcement
A.
Employee Claims
1. An employee may file a claim with the
Director charging that an employer has violated Ark. Code Ann. §§
11-4-210
or -211 with respect to minimum wage and overtime as to the complaining
employee or other person. Such claim shall be on a form or process approved by
the division.
2. The division shall
promptly investigate each claim and at the conclusion of such investigation
shall issue a "Notice of Assessment" pursuant to Rule
010.14.111(B) or a letter
advising the employer and the employee that no violation was found.
3. The name of any employee identified in a
claim shall be kept confidential until the director issues a Notice of
Assessment. The Notice of Assessment is an "administrative complaint" within
the meaning of Ark. Code Ann. §
11-4-220.
B.
Notice of
Assessment1. Whenever the
Administrator determines that there has been a violation of the Act or these
Rules, 010.14 -100
et
seq., the Administrator shall issue a Notice of Assessment, which
shall include the following:
a. the dates of
any violations;
b. the statute or
Rule violated;
c. the amount of any
back wages assessed;
d. the amount
of any civil money penalty assessed and the reasons for such a
penalty;
e. the amount of any
liquidated damages assessed and the reasons for such an assessment;
f. the name(s) of any employees on whose
behalf back wages are assessed;
g.
a statement of how to contest the assessment and obtain an administrative
hearing; and
h. a statement that
the failure to contest the assessment will result in the Administrator's
decision becoming the final administrative determination.
2. A Notice of Assessment may be issued as a
result of investigations initiated by a claim filed by an employee, as well as
a result of investigations initiated by the division.
3. A Notice of Assessment shall be delivered
to the employer by certified mail. Where service by certified mail is not
accepted or unclaimed by the party, notice shall be deemed received on the date
of attempted delivery. Where service is not accepted or unclaimed, the
Administrator may exercise discretion to serve the Notice of Assessment by
regular mail.
C.
Civil Money Penalties1. The
Administrator may issue a civil money penalty for the following:
a. willfully hindering or delaying an
investigation under the Act or these Rules or willfully hindering or delaying
any representative of the Director in the performance of his duties in the
enforcement of the Act or these Rules;
b. willfully failing to make, keep, or
preserve any record required by the Act or these Rules or willfully falsifying
such records;
c. willfully refusing
to make any record accessible to the division upon demand or willfully refusing
to furnish a sworn statement of the record or any other information required
for the proper enforcement of the Act and these Rules;
d. willfully failing to post a summary of the
law as required by Ark. Code Ann. §
11-4-216;
e. paying or agreeing to pay wages at a rate
less than required by the Act;
f.
otherwise willfully violating any provision of the act or any Rule issued
thereunder; and
g. willfully
discharging or in any other manner willfully discriminating against any
employee because the employee has:
i. made a
complaint to his or her employer or to the director or his authorized
representative regarding compliance with the Act or these Rules;
ii. instituted or is about to institute any
proceeding under or related to this Act; or
iii. testified or is about to testify in any
proceeding under or related to this Act.
2. The amount of any civil money penalty
shall be between $50 and $1000 for each violation. Each violation shall
constitute a separate offense. For the purposes of Rule 010.14-111(C)(1)(g),
each day the violation continues shall constitute a separate offense.
3. In determining the amount of a civil
penalty, the Administrator shall consider the appropriateness of the penalty to
the size of the business and the gravity of the violation.
a. Matters which indicate that the gravity of
the matter justifies maximum civil penalty assessments are:
i. multiplicity of violations;
ii. recurring violations;
iii. falsification and/or concealment of
information or records; and
iv.
failure to assure future compliance.
b. The size of the business includes the
number of employees and the gross volume of sales.
4. Assessment of a civil money penalty shall
be made no later than three (3) years from the date of the occurrence of the
violation.
D.
Liquidated damages
The Administrator may assess liquidated damages to be paid an
employee in an amount up to but not greater than the back wages assessed on
behalf of the employee. Liquidated damages shall be assessed for willful
violations of the Act or these Rules.
E.
Contesting an assessment
1. An employer may contest an assessment made
by the Administrator by filing a written request for a hearing with the
Director of Labor, 10421 West Markham, Little Rock, AR 72205. The written
request must be made within fifteen (15) days after the employer's receipt of
the Notice of Assessment or the assessment will become final.
2. A written request for a hearing shall be
referred to a hearing officer designated by the Director and shall be handled
as an adjudicative matter pursuant to Rule 010.14-007.
010.14-112
Interpretation
And Application of Rules
The department may rely on the interpretations of the U. S.
Department of Labor and federal precedent established under the Fair Labor
Standards Act in interpreting and applying the provisions of the Act and Rule
010.14-100 through -113, except to the extent a different interpretation is
clearly required.
010.14-113
Repealer, Severability,
Effective Date and HistoryA. All
previous rules and regulations of the Arkansas Department of Labor regarding
the Arkansas Minimum Wage Act, Ark. Code Ann. §§
11-4-201
et seq. are hereby repealed.
B. If any provision of these Rules or their
application to any person or circumstance is held invalid, such invalidity
shall not effect other provisions or applications which can be given effect
without the invalid provision or application, and to this end the provisions of
these Rules are declared to be severable.
C. The effective date of these Rules is
January 26, 2007.
D.
History.
The Arkansas Minimum Wage Act, Ark. Code Ann. §§
11-4-201
et seq. was initially passed in 1968. 25 Ark. Acts 1968
(1st Ex. Session). The Labor Board of the State of
Arkansas promulgated administrative regulations effective September, 1979.
These regulations were repealed and emergency rules were adopted effective
October 1, 2006. The emergency rules were replaced by these rules effective
January 26, 2007
Note: The Labor Board was abolished and all its functions,
powers, and duties transferred to the Director of the Department of Labor by
Act 536 of 1989.
