Current through Register Vol. 49, No. 6, March 15, 2024
PURPOSE: This amendment adds a requirement that
objectors who plan to rely on hours not previously submitted to the Division of
Labor Standards prior to its January 31 deadline plead and prove a good cause
why the hours were not previously submitted; clarifies procedures for the
prehearing and hearing before the commission; and clarifies the criteria and
procedure for LIRC consideration of a motion to amend from the Division of
Labor Standards.
(1)
Objections. Within thirty (30) days after the certified copy of a wage order
has been filed with the secretary of state and the commission, any person who
may be affected by the wage order may object, in writing, to the wage order, or
any part thereof that the party considers objectionable by filing an objection
with the commission. The objector shall set forth in writing, the specific
grounds of objection and not merely a conclusion that the wage rate is too high
or too low, but shall set out in detail how the objector reaches the conclusion
that the rate is either too high or too low. If the objection is premised, in
whole or in part, upon hours that were not previously reported to the Division
of Labor Standards on or before January 31 of the year in which the objection
is filed, the commission will consider the objection only if the objector is
able to allege and prove a good cause why the hours were not previously
reported to the Division of Labor Standards. If the objector fails to identify
and allege such good cause in the written objection, the objection may be
dismissed by the commission without a hearing. For purposes of this rule, "good
cause" shall mean those circumstances in which the objector acted in good faith
and reasonably under all the circumstances. At the time of filing the
objection, a copy shall be furnished to the Division of Labor Standards. Within
thirty (30) days of the receipt of the objection, the commission shall set a
date for a hearing on the objection. The day for the hearing shall be within
sixty (60) days of the receipt of the objection. Written notice of the time and
place of the hearing shall be given to the objectors, proponents, and other
interested parties at least ten (10) days prior to the date set for the
hearing.
(2) Hearings, generally.
(A) Hearings held by the commission under the
Prevailing Wage Law shall be held by the commission, any commissioner or a
representative designated by the commission. If the hearing is conducted by one
(1) of the commissioners or by a designated representative, a recommended order
will be prepared by such commissioner or designated representative and such
order will be subject to the approval of a majority of the commission qualified
to review the recommended order.
(B) At the hearing, any party may be
represented by an attorney-at-law. Only an attorney, licensed to practice in
Missouri, may appear in a representative capacity. A person whose conduct is
detrimental to the proper and orderly conduct of the hearings may be excluded
from the hearing room by the commission or designated representative. The
commission or its designated representative may examine any party or
witness.
(C) In order for the
commission to make its determination(s) within the statutory time periods for
disposing of objections, a request to postpone or continue a prehearing
conference or hearing will not be granted unless the commission determines that
extraordinary circumstances are present and that the interests of justice
require such a remedy. Alternatively, on its own motion, the commission may
adjourn, postpone, or continue any hearing from time-to-time or place-to-place
at its discretion.
(3)
Prehearing Conference.
(A) Before any hearing,
the commission, at its discretion, may direct the parties or their attorneys to
appear before it for a prehear-ing conference to consider-
1. The simplification of the
issues;
2. The possibility of
obtaining admissions of fact and documents which will avoid unnecessary
proof;
3. The limitation of the
number of witnesses; and
4. Such
other matters as may aid in the disposition of the hearing.
(B) Immediately upon receipt of
notice from the commission setting a date for the prehearing conference, all
parties to an objection, including the Division of Labor Standards, shall
arrange for an exchange of the following:
1.
Copies of all exhibits the parties plan to offer into evidence at the hearing
before the commission, which shall be certified as authentic via
affidavit;
2. The sworn, direct
testimony of all witnesses the parties plan to call at the hearing before the
commission, to be provided in the form of a written affidavit, which may be in
question and answer format, and which testimony shall be subject to
cross-examination at a hearing before the commission;
3. For the Division of Labor Standards, the
wage surveys, investigatory records, economic data, and all other materials or
information considered in the course of preparing and issuing the wage order
determination(s) at issue; and
4.
All other materials the parties plan to offer as evidence at the hearing before
the commission.
(C) The
exchange of such materials shall be concluded at least seven (7) days before
the date set for the prehearing conference. Failure on the part of any party to
comply may be grounds for exclusion from evidence of all withheld
materials.
(D) At the prehearing
conference, the parties shall identify and file with the commission all
evidence upon which they plan to rely at the hearing. If any party identifies,
at the prehearing conference, evidence that was not previously provided to
opposing parties as required by this rule, the evidence will not be entered
into the record at the hearing unless the proponent is able to demonstrate that
the evidence is newly discovered or could not, with the exercise of reasonable
diligence, have been earlier identified and provided to opposing parties. The
commission is opposed, as a matter of policy, to the introduction of any new
evidence not previously identified and exchanged between the parties in advance
of the prehearing conference.
(E)
The commission favors, wherever possible, ruling upon the substantive merits of
the dispute rather than issues of procedural formality or the technical rules
of evidence. Accordingly, any objection to evidence identified and filed with
the commission at the prehearing conference shall be made at the prehearing
conference in order to permit opposing parties an opportunity to cure, in
advance of the hearing, any technical deficiencies in the evidence. For
purposes of this rule, "technical deficiency" refers to any complaint a party
might raise concerning the form in which evidence is offered. If, in the
discretion of the commission, offered evidence is material to any of the
substantive issues involved in the parties' dispute, it shall not be rejected
solely because of some deficiency in the form in which the evidence is
offered.
(F) The commission, or
its designated representative, shall prepare an order which recites the action
taken at the conference and the agreements made by the parties as to any of the
matters considered. The order will limit the issues for the hearing to those
not disposed of by admissions or agreements of counsel. Such order, when
entered, controls the subsequent course of the hearing, unless modified
thereafter to prevent manifest injustice.
(G) If the parties determine that they are
able to resolve their dispute in advance of the hearing, the parties shall file
with the commission a joint stipulation that resolves each of the issues raised
in the objection, and attach all relevant replacement pages making the agreed
changes to the annual wage order prepared by the Division of Labor Standards.
Alternatively, if the parties are able to agree that no such change to the
annual wage order should be made, the objector shall file a request to withdraw
the objection.
(4)
Procedures for the hearing.
(A) At the outset
of the hearing, the commission will identify all evidence filed at the
prehearing conference. If any objection(s) were raised at the prehearing
conference to the entry of said evidence into the record of hearing, the
parties shall be permitted a chance to argue said objection(s), and the
commission will either rule upon said objection(s) at the hearing, or take the
issue under advisement. If no objections were raised at the prehearing
conference, the evidence filed at the prehearing conference shall be entered
into the record of the hearing by the commission, with the understanding that
all direct testimony from witnesses shall be subject to
cross-examination.
(B) Thereafter,
the following procedure will be followed:
1.
Witnesses, if any, on behalf of the Division of Labor Standards shall
testify;
2. Witnesses, if any, on
behalf of the objector shall testify;
3. Witnesses, if any, on behalf of any other
interested party shall testify; and
4. Other than any new testimony provided by
the witnesses upon cross-examination or redirect examination, no evidence,
other than the testimony and documents filed at the pre-hearing conference,
will be allowed at the hearing, unless the commission determines that the
interests of justice so require.
(C) The commission shall determine what evidence is
material to the issue(s). The order or procedures set forth in section (4)
shall be followed unless, in the interest of conducting a fair hearing, the
commission determines otherwise.
(5) Record of Proceedings. The commission may
cause such proceedings before it to be suitably recorded as it considers
necessary and expedient, the cost of which shall be borne by the commission.
Any party desiring a copy of the transcript shall purchase its own copy from
the reporter who transcribed the proceedings.
(6) Motions to Amend.
(A) In order to preserve the commission's
ability to provide due process to those interested parties who may have already
completed their review of the initial annual wage order, if the Division of
Labor Standards determines that it is necessary to file with the commission a
motion to amend an annual wage order for the purpose of correcting any
typographical or clerical errors set forth therein, said motion shall be filed
with the commission at least seven days prior to the thirtieth (30th) day
following the date on which the Division of Labor Standards filed its annual
wage order with the Secretary of State. Failure to comply may result in denial
of the motion to amend.
(B) Upon
receipt of a motion to amend from the Division of Labor Standards, the
commission will wait a minimum of ten (10) days before ruling upon said motion,
to permit interested parties a chance to respond.
(C) The motion to amend shall contain, in the
body of the motion, an identification of every locality and occupational title
affected by the changes requested by the motion, and shall specifically
identify and explain the nature of the asserted typographical or clerical error
prompting the motion to amend, and how the asserted typographical or clerical
error was discovered.
