This section applies to appeals of assessments of
administrative civil money penalties against employers determined to have
violated Title 26, Chapter 7.
A.
Notice of Penalty Assessment and Right to Appeal
The Director shall issue a Notice of Penalty Assessment in
writing. Such notice must be sent by at least one of the following
methods:
1. U.S. mail;
2. By hand; or
3. By email if the Bureau previously
communicated with the employer by email.
The Notice of Penalty Assessment must state that the penalty
may be appealed by making a written request for an appeal to the Commissioner.
The employer may request the appeal by U.S mail, hand delivery or email. The
request for an appeal must be received by the Commissioner within fifteen (15)
business days from the date the Notice of Penalty Assessment was mailed or
otherwise delivered.
B.
Conduct of Hearing on Appeal to the
Commissioner
1. The Commissioner may
serve as the hearing officer or may assign the appeal to a qualified Hearing
Officer.
2. The Hearing Officer may
call upon the parties to appear telephonically or by remote video for a
pre-hearing conference to identify issues, witnesses, exhibits and such other
matters that may aid in the conduct of the hearing.
3. The Hearing Officer shall establish a
hearing date and provide notice to the parties at least 10 days in advance of
the hearing.
4. A party's failure
to participate in a pre-hearing conference and/or to comply with requirements
of a pre-hearing order, such as providing witness and exhibit lists, may result
in a default in accordance with 5 M.R.S. §9053(3).
5. The hearing will be conducted pursuant to
the provisions of the Administrative Procedure Act governing
adjudicatory proceedings, 5 M.R.S. §§ 9051-9064.
6. The hearing will be at the headquarters of
the Bureau or at a place mutually agreeable to the parties. The hearing may be
held telephonically or by remote video, at the discretion of the
Commissioner.
7. The Hearing
Officer may sequester witnesses, except a representative of the employer, the
Director of the Bureau, and the Director of the Division of Wage and Hour. A
party who is represented by counsel may have a representative in addition to
counsel present throughout the hearing. The parties may agree not to sequester
witnesses.
8. Evidence shall be
admitted if it is the kind of evidence upon which reasonable persons are
accustomed to rely in the conduct of serious business.
9. All witnesses shall be sworn by the
Hearing Officer.
10. The parties
will have an opportunity to present evidence. Cross- examination of all
witnesses shall be allowed.
11. The
Hearing Officer decides the Order of Proceedings. The Director has the burden
of production. The appellant has the burden of proof.
12. Within 30 days of the close of evidence,
including any written closing statements or legal briefs, if allowed, the
Hearing Officer shall issue a written Recommended Decision to the parties. The
Recommended Decision may be issued by U.S. mail, hand delivery or by email. The
Recommended Decision shall include findings of fact sufficient to apprise the
parties of the basis for the recommendation.
13. The parties may submit written objections
or other comments on the Recommended Decision to the Hearing Officer by U.S.
mail, hand delivery or email within ten (10) business days after the
Recommended Decision was issued.
C.
Final Decision
The Hearing Officer shall issue a Final Decision, setting out
the reasoning for the decision. The Final Decision is final agency action
within the meaning of 5 M.R.S. §11001. The Final Decision will be sent by
U.S. mail, hand delivery or by email to all parties. The Final Decision of the
Hearing Officer shall be subject to review by the Superior Court, pursuant to 5
M.R.S. §11001.
