010.14-001
Statement of
Organization and Operations
The Arkansas Department of Labor and Licensing is an agency of
state government created by Act 910 of 2019, Ark. Code Ann. §
25-43-1101
et seq. The Labor Standards Section is working unit
within the Division of Labor, Department of Labor and Licensing. The Director
of the Division of Labor has regulatory or enforcement authority over:
1. Minimum wage and overtime;
2. Child labor;
3. Private employment agencies;
4. Claims for unpaid wages of less than
$2,000; and
5. 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 the Division of Labor.
The Labor Standards Section also oversees the licensure of
private employment agencies. Ultimate authority for the operation of the agency
is in the Secretary of the Department of Labor and Licensing, who is appointed
by the Governor. The Director of the Division of Labor has the regulatory,
enforcement, and administrative authority for the Labor Standards Section. The
individual charged with the day-to-day operations is referred to as the Labor
Standards Manager, who is selected by the director. From time to time, the
director promulgates rules.
010.14-002
Information for Public
Guidance
The mailing address and telephone number for the Labor
Standards Section is:
Labor Standards Section
Division of Labor
Arkansas Department of Labor and Licensing
900 West Capitol, Suite 400
Little Rock, AR 72201
(501) 682-4535
The division 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 website. Additionally, the Labor Standards Section can be contacted
directly as listed above.
The section has a list of official forms used by the section
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 section's office or website. The
Division of Labor website is:
https://www.labor.arkansas.gov/.
Copies of all forms used by the section, written statements of
policy and written interpretive memoranda, and all orders issued by the agency
may be obtained from the section's office.
010.14-003
General Organization
A. The Labor Standards Section 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 ursuant 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 director has been authorized by the Legislature to
promulgate rules. Ark. Code Ann. §
11-4-209(a) (minimum wage and
overtime); §§
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 division 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
division 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 Division 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
division 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
Input1. 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 division 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 division 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 division must ensure that the
division 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 division 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 division 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 Rule1. The
division will not finalize language of the rule or decide whether to adopt a
rule until the period for public comment has expired and the proposed rule has
been reviewed and approved by the Legislative Council or other legislative
committee pursuant to Ark. Code Ann. §
10-3-309.
2. Before acting on a proposed rule, the
division 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
division may use its own experience, specialized knowledge, and judgment in the
adoption of a rule or consider the experience, specialized knowledge and
judgment of division staff.
H.
Variance Between Adopted Rule and
Published Notice of Proposed Rule
1.
The division 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 division 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 division 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 Division 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 division.
2. The concise statement of reasons must
contain:
a. The division'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
division's reasons for overruling the arguments made against the
rule.
J.
Contents
The division 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 division 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 division 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
the division
L.
Incorporation by Reference
By reference in a rule, the division may incorporate all or any
part of a code, standard, rule, or other matter if the division finds that
copying the matter in the division'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 division may incorporate
such a matter by reference in a proposed or adopted rule only if the division
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 division, 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
division must retain permanently a copy of any materials incorporated by
reference in a rule.
M.
Filing
1. After the division
formally adopts a new rule or amends a current rule or repeals an existing
rule, and after the rule change has been reviewed and approved 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 Section of the Division of Labor.
3. Notice of the rule change will be posted
on the division website.
010.14 -005
Emergency
Rule-Making
A.
Request for
Emergency Rule-Making
The proponent of a rule may request the division 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 division 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 division determines that the circumstances
warrant emergency rule-making, it will make a written determination that sets
out the reasons for its finding that an emergency exists. Upon making this
finding, the division 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 Rule1. The division
shall not finalize an emergency rule or file an emergency rule with the
Secretary of State for adoption until the emergency rule has been approved
under Ark. Code Ann. §
10-3-309.
The emergency rule will be effective immediately upon filing,
or at a stated time less than ten (10) days thereafter, if the division finds
that this effective date is necessary because of imminent peril to the public
health, safety, or welfare. The division will file with the rule the division'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 division 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 division 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 Division of Labor a petition that provides the
following information:
1. The caption
shall read: Petition for Declaratory Order Before Arkansas Division of Labor,
Labor Standards Section.
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), division rule(s), or division 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.
Division Disposition
1. The
division 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 division's rules for adjudicatory
hearings.
2. The division 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 division 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 Section of the Division of
Labor. This procedure is developed to provide a process by which the division
formulates orders (for example, an order revoking a license to practice, or
imposing civil penalties).
B.
Presiding Officer
The Director of the Division 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 division 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. 3. 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 division. 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 division 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.
Continuances1. 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 Procedures
1. 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 Procedures 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 division, 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 division. 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 division 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 division.
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.
0.
Default
If a party fails to appear or participate in an administrative
adjudication after proper service of notice, the division 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 Division 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 division 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 division 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 division. Upon the filing of a petition for judicial review,
the division will provide a transcript of testimony taken before the division.
If the division is successful upon appeal, the division 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 division 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; and
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 division will serve on the respondent a written order that
reflects the action taken by the division. 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.
