Kansas Administrative Regulations
Agency 49 - DEPARTMENT OF LABOR
Article 21 - PROCEDURES
Section 49-21-3 - Hearings
Universal Citation: KS Admin Regs 49-21-3
Current through Register Vol. 43, No. 12, March 20, 2024
(a) Authority of the hearing officer.
(1) The hearing
officer shall be appointed by the secretary and shall have the power and
authority, in conducting hearings in the name of the secretary, as provided in
K.S.A.
44-322:
(A)
To administer oaths and examine witnesses under oath;
(B) to issue compulsory process to compel the
attendance of witnesses or the production of papers, books, accounts, records,
payrolls, documents, or other exhibits relating to claims for unpaid wages; and
(C) to receive depositions and
affidavits in the process of the hearing.
(2) The hearing officer shall conduct the
hearing, rule on the admissibility of evidence and the examination of
witnesses, and determine the extent to which the rules of evidence will apply.
(3) The hearing officer shall
weigh the evidence presented, make findings of fact and conclusions of law, and
issue orders based on those findings and conclusions. The hearing officer shall
explain the decision in memorandum form and the memorandum shall accompany the
order.
(4) The hearing officer may
require good and sufficient reason before granting any continuance or
postponement of any hearing for which proper service has been made. The hearing
officer may refuse any such request when, in the hearing officer's judgment,
the request:
(A) Would cause hardship or
undue delay on the adverse party; or
(B) would not allow time for reasonable
notice to each party and witness.
(b) Notice of hearing.
(1) Each party to the dispute shall be given
not less than 10 days written notice of the time and place of the hearing by
personal service or by first class mail. The notice shall contain a brief
description of the alleged violations to be determined and shall state that
each party may be represented by counsel, may call witnesses on its behalf, may
cross-examine adverse witnesses, and may introduce evidence in support of its
position.
(2) Subpoenas issued to
require the attendance of witnesses or the production of evidence shall be
served personally. Either party may request the use of a subpoena to require
the production of evidence or the appearance of a witness by making the request
no later than five days before the hearing date. Each request shall be specific
so as to properly identify the evidence or person to be subpoenaed. Failure to
obtain service of any such subpoena shall not be cause for a continuance or
postponement of any hearing if improper service is made by the parties to the
dispute, or if the requesting party has failed to provide accurate or complete
information so as to allow such service or if the request does not allow
sufficient time to obtain proper service. Final determination of the merits of
any such request shall rest with the hearing officer.
(c) Hearing procedures.
(1) The burden of proof that services were
performed within an established employment agreement for which payment has not
been made shall rest with the claimant. The burden shall be satisfied by
testimony or other evidence. Once the claimant has established that an
employment agreement existed and that services were performed, the burden of
proof to establish payment for those services shall rest with the respondent.
(2) Strict rules of evidence shall
not apply and the hearing officer may rule on questions of evidence. All
evidence shall be relevant and material to the dispute, and the hearing officer
shall determine when a party exceeds the bounds of relevancy. In such a case,
the hearing officer may request that the evidence be made relevant to the
dispute.
(3) A transcript of the
hearing shall be made and maintained by a certified shorthand reporter, or the
hearing officer shall make a record by means of a tape recording, until the
record is duly transcribed and certified to the court as required. Any party
desiring a copy of the transcript may make a request to the agency, and upon
payment of a reasonable fee as established by the secretary, a transcript shall
be furnished to the party by the department of human resources. Any party to
the hearing wishing to make a separate record may do so at the party's own
expense, if the party furnishes a copy to the secretary of human resources and
to the adverse party as soon as it is available from the person making such a
record.
(4) Either party to the
dispute may be represented by counsel and may call any witnesses or
cross-examine any witness.
(5) The
record on appeal shall consist of the complaint, any response thereto by the
employer, any reply by the claimant to the employer's response, the transcript
of the proceedings before the administrative tribunal, any exhibits introduced
at the hearing, and the order entered by the hearing officer.
That portion of the entire record which is to be filed with the clerk of the district court shall be determined and prepared for filing in accordance with these regulations, but the district court may order any or all additional parts of the entire record to be filed.
(6) The cost of reproducing the record for
filing with the district court shall be borne by the appellant. Upon
ascertaining the cost of the duplication and the payment thereof in advance by
the party making the request, the agency shall effect such duplication and
transmit the record to the clerk of the district court for filing.
(d) Findings of fact, conclusions of law, and order.
(1) The findings of fact
shall set forth all facts:
(A) That are
supported by the evidence;
(B)
which are relevant to the issues of the claim; and
(C) that are necessary to support conclusions
of law.
(2) The order
shall be issued by the hearing officer within 45 days of the hearing and shall
include, if required by the facts, any damages assessed because of respondent's
willful violation. The order shall contain a certificate of service and shall
be served upon each party to the dispute either personally or by first class
mail. The order shall contain a statement that, unless the order is satisfied,
or an appeal is taken to the district court in accordance with
K.S.A.
60-2101 within 30 days after entry of the
decision, the case will be:
(A) Referred to
the secretary of human resources or the secretary's authorized representative
for enforcement; or
(B) reassigned
to the claimant for enforcement through judicial proceedings.
Disclaimer: These regulations may not be the most recent version. Kansas may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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