Wage and Hour Division, Labor § 530.1

§ 528.6 29 CFR Ch. V (7–1–20 Edition)

an order shall be deemed issued and ef- PART 530—EMPLOYMENT OF fective according to its terms when HOMEWORKERS IN CERTAIN IN- mailed. DUSTRIES (Secretary’s Order No. 16–75, dated Nov. 25, 1975 (40 FR 55913); Employment Standards Subpart A—General Order No. 76–2, dated Feb. 23, 1976 (41 FR 9016)) Sec. 530.1 Definitions. [43 FR 28469, June 30, 1978] 530.2 Restriction of homework. 530.3 Application forms for individual § 528.6 Review. homeworker certificates. 530.4 Terms and conditions for the issuance Any employer and, when appropriate, of individual homeworker certificates. any apprenticeship agency or respon- 530.5 Investigation. sible school official, who expressed 530.6 Termination of individual timely objection to the proposed action homeworker certificates. prior to issuance of an order of annul- 530.7 Revocation and cancellation of indi- ment or withdrawal may obtain review, vidual homeworker certificates. limited to the question of whether the 530.8 Preservation of individual homeworker certificates. findings of fact support the order under 530.9 Records and reports. the regulations in this part. Applica- 530.10 Delegation of authority to grant, tion for such review shall be in writing deny, or cancel an individual addressed to the Administrator and homeworker certificate. mailed within 15 days after the order is 530.11 Petition for review. issued. The Administrator may affirm, 530.12 Special provisions. modify, or reverse the order, or may re- Subpart B—Homeworker Employer mand it for further proceedings. The Certificates order under review shall not be stayed in effect pending such review. Any ag- 530.101 General. grieved person may obtain such review 530.102 Requests for employer certificates. of an order entered in proceedings in- 530.103 Employer assurances. stituted under paragraph (c) of § 528.3. 530.104 Bonding or security payments. 530.105 Investigations. [21 FR 5316, July 17, 1956, as amended at 22 FR 5683, July 18, 1957] Subpart C—Denial/Revocation of Homeworker Employer Certificates § 528.7 Effect of order of annulment or withdrawal. 530.201 Conflict with State law. 530.202 Piece rates—work measurement. Except as otherwise expressly pro- 530.203 Outstanding violations and open in- vided in such order, any order of annul- vestigations. ment or withdrawal under paragraph 530.204 Discretionary denial or revocation. (a) or (b) of § 528.3 shall be effective to 530.205 Mandatory denial or revocation. 530.206 Special circumstances. terminate all certifications to which the regulations in this part apply in ef- Subpart D—Civil Money Penalties fect at the establishment where the cause for withdrawal arose or where 530.301 General. the annulled certificate had effect. 530.302 Amounts of civil money penalties. 530.303 Considerations in determining After such annulment or withdrawal, amounts. such employer shall be ineligible to ob- 530.304 Procedures for assessment. tain or exercise the privileges granted in such a certificate until he satisfies Subpart E—Administrative Procedures the issuing officer that he will not again give cause for annulment or 530.401 Applicability of procedures and rules. withdrawal if a certificate is issued. 530.402 Notice of determination. (Secretary’s Order No. 16–75, dated Nov. 25, 530.403 Request for hearing. 1975 (40 FR 55913); Employment Standards 530.404 Referral to Administrative Law Order No 76–2, dated Feb. 23, 1976 (41 FR Judge. 9016)) 530.405 General. 530.406 Decision and order of Administrative [43 FR 28469, June 30, 1978] Law Judge.

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530.407 Procedures for initiating and under- ments similar to the foregoing; and in- taking review. fants; and children’s outerwear. 530.408 Notice of the Secretary to review de- (f) The jewelry manufacturing indus- cision. try is defined as follows: 530.409 Final decision of the Secretary. 530.410 Special procedures. (1)(i) The manufacturing, processing, 530.411 Emergency certificate revocation or assembling, wholly or partially from procedures. any material, of jewelry, commonly or 530.412 Alternative summary proceedings. commercially so known. Jewelry as 530.413 Certification of the record. used herein includes without limita- 530.414 Equal Access to Justice Act. tion, religious, school, college, and fra- ternal insignia; articles of ornament or AUTHORITY: Sec. 11, 52 Stat. 1066 (29 U.S.C. 211) as amended by sec. 9, 63 Stat. 910 (29 adornment designed to be worn on ap- U.S.C. 211(d)); Secretary’s Order No. 01–2014 parel or carried on or about the person, (Dec. 19, 2014), 79 FR 77527 (Dec. 24, 2014); 28 including, without limitation, cigar U.S.C. 2461 note (Federal Civil Penalties In- and cigarette cases, holders, and light- flation Adjustment Act of 1990); Pub. L. 114– ers; watch cases; metal mesh bags and 74 at § 701, 129 Stat 584. metal watch bracelets; and chain, SOURCE: 24 FR 729, Feb. 3, 1959, unless oth- mesh, and parts for use in the manufac- erwise noted. ture of any of the articles included in this definition. Jewelry as used in this Subpart A—General part does not include pocket knives, cigar cutters, badges, emblems, mili- § 530.1 Definitions. tary and naval insignia, belt buckles, (a) The meaning of the terms person, and handbag and pocketbook frames employ, employer, employee, goods, and clasps, or commercial compacts and production, as used in this part, is and vanity cases, except when made the same as in the Fair Labor Stand- from or embellished with precious met- ards Act of 1938, as amended. als or precious, semiprecious, synthetic (b) Administrator as used in this part or imitation stones, or the assaying, means the Administrator of the Wage refining, and smelting of base or pre- and Hour Division, U.S. Department of cious metals. Labor, or an authorized representative (ii) The term parts as used in para- of the Administrator. graph (e)(1)(i) of this section does not (c) Industrial homeworker and include parts which are used predomi- homeworker, as used in this part, mean nantly for products other than jewelry, any employee employed or suffered or such as springs, blades, and nail files. permitted to perform industrial home- The term commercial compacts and van- work for an employer. ity cases as used means compacts and (d) Industrial homework, as used in vanity cases which bear the trade name this part, means the production by any or mark of a cosmetic manufacturer person in or about a home, apartment, and are made for the purpose of distrib- tenement, or room in a residential es- uting or advertising said cosmetics. tablishment of goods for an employer (2) The manufacturing, cutting, who suffers or permits such production, polishing, encrusting, engraving, and regardless of the source (whether ob- setting of precious, semiprecious, syn- tained from an employer or elsewhere) thetic, and imitation stones. of the materials used by the (3) The manufacturing, drilling, and homeworker in such production. stringing of pearls, imitation pearls, (e) The women’s apparel industry is and beads designed for use in the man- defined as follows: The production of ufacture of jewelry. women’s, misses’ and juniors’ dresses, (4) The term hand-fashioned jewelry as washable service garments, blouses, used in § 530.12(b) means articles of jew- and neckwear from woven or purchased elry commonly known as genuine Nav- knit fabric; women’s, misses’, chil- ajo, Pueblo, Hopi, or Zuni handmade dren’s and infants’ underwear, night- jewelry which in all elements of design, wear, and negligees from woven fabrics; fashioning and ornamentation are corsets and other body supporting gar- handmade by methods and with the ments from any material; other gar- help of only such devices as permit the

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maker to determine the shape and de- (8) Knitted shirts of cotton or any sign of each individual product: Pro- synthetic fiber or any mixture of such vided, That silver used in the making of fibers which have been knit on machin- such jewelry shall be of at least nine ery of 10-cut or fine: Provided, That this hundred fineness, and that turquoise exception shall not be construed to ex- and other stones used shall be genuine clude from the knitted outerwear in- stones, uncolored and untreated by ar- dustry and the manufacturing, dyeing, tificial means: And provided further, or other finishing of knitted shirts That power machinery is permitted in made in the same establishment as the production of findings, in the cut- that where the knitting process is per- ting and polishing of stones, in the formed, if such shirts are made wholly buffing and polishing of completed or in part of fibers other than those products, and in incidental functions. specified in this clause, or if such Equipment specifically prohibited shall shirts of any fiber are knit on machin- include hand presses, foot presses, drop ery coarser than 10-cut. hammers, and similar equipment: And (h) The gloves and mittens industry provided further, That solder may be of is defined as follows: The production of less silver content than nine hundred; gloves and mittens from any material And provided further, That findings may or combination of materials, except be mechanically made of any metal by athletic gloves and mittens. Indians or others: And provided further, (i) The button and buckle manufac- That turquoise and other stones may turing industry is defined as follows: be cut and polished by Indians or oth- The manufacture of buttons, buckles, ers without restrictions as to methods and slides, and the manufacture of or equipment used. blanks and parts for such articles from (g) The knitted outerwear industry is any material except metal, for use on defined as follows: The knitting from apparel. any yarn or mixture of yarns and the (j) The handkerchief manufacturing further manufacturing, dyeing or other industry is defined as follows: The finishing of knitted garments, knitted manufacture of men’s, women’s and garment sections, or knitted garment children’s handkerchiefs, plain or orna- accessories for use as external apparel mented, from any materials. or covering which are partially or com- (k) The embroideries industry is de- pletely manufactured in the same es- fined as follows: The production of all tablishment as that where the knitting kinds of hand and machine-made process is performed; and the manufac- embroideries and ornamental ture of bathing suits from any pur- stitchings, including but not by way of chased fabric: Provided, That the manu- limitation, tucking shirring, smocking, facturing, dyeing or other finishing of hemstitching, hand rolling, fagoting, the following shall not be included: Bonnez embroidery, appliqueing, cro- (1) Knitted fabric, as distinguished chet beading, hand drawing, machine from garment sections or garments, for drawing, rhinestone trimming, sequin sale as such. trimming, spangle trimming, eyelets, (2) Fulled suitings, coatings, passementerie, pleating, the applica- topcoatings, and overcoatings. tion of rhinestones and nailheads, (3) Garments or garment accessories stamping and perforating of designs, made from purchased fabric, except Schifli embroidery and laces, burnt-out bathing suits. laces and velvets, Swiss handmachine (4) Gloves or mittens. embroidery, thread splitting, embroi- (5) Hosiery. dery thread cutting, scallop cutting, (6) Knitted garments or garment ac- lace cutting, lace making-up, making- cessories for use as underwear, sleeping up of embroidered yard goods, straight wear, or negligees. cutting of embroidery and cutting out (7) Fleece-lined garments made from of embroidery, embroidery trimmings, knitted fabric containing cotton only bindings (not made in textile establish- or containing any mixture of cotton ments), pipings and emblems: Provided, and not more than 25 percent, by That (1) the foregoing when produced weight, of wool or animal fiber other or performed by a manufacturer of a than silk. garment, fabric or other article for use

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on such garment, fabric or other arti- in proper form and sets forth facts cle, and (2) the manufacture of covered showing that the worker: buttons and buckles, shall not be in- (1)(i) Is unable to adjust to factory cluded. work because of age or physical or (l) As used throughout this part the mental disability; or terms ‘‘Secretary’’ or ‘‘Secretary of (ii) Is unable to leave home because Labor’’ shall mean the Secretary of the worker’s presence is required to Labor, U.S. Department of Labor, or care for an invalid in the home; and his or her designee. (2)(i) Was engaged in industrial [24 FR 729, Feb. 3, 1959, as amended at 46 FR homework in the particular industry 50349, Oct. 9, 1981; 49 FR 22036, May 24, 1984; for which the certificate is applied, as 53 FR 45722, Nov. 10, 1988; 61 FR 19986, May 3, such industry is defined in § 530.1, prior 1996; 82 FR 2228, Jan. 9, 2017] to: (a) April 4, 1942, in the button and buckle manufacturing industry; (b) No- § 530.2 Restriction of homework. vember 2, 1942, in the embroideries in- Except as provided in subpart B of dustry; (c) April 1, 1941, in the gloves this part, no work in the industries de- and mittens industry; (d) October 7, fined in paragraphs (e) through (k) of 1942, in the handkerchief manufac- § 530.1 shall be done in or about a home, turing industry; (e) July 1, 1941, in the apartment, tenement, or room in a res- jewelry manufacturing industry; or (f) idential establishment unless a special March 5, 1942, in the women’s apparel homework certificate issued and in ef- industry, except that if this require- fect pursuant to this part has been ob- ment shall result in unusual hardship tained for each homeworker or unless to the individual homeworker it shall the homeworker is so engaged under not be applied; or the supervision of a Sheltered Work- (ii) Is engaged in industrial home- shop, as defined in § 525.2 of this chap- work under the supervision of a State ter. Vocational Rehabilitation Agency. [53 FR 45722, Nov. 10, 1988] (b) No homeworker shall perform industrial homework for more than one § 530.3 Application forms for indi- employer in the same industry, but vidual homeworker certificates. homework employment in one industry Certificates authorizing the employ- shall not be a bar to the issuance of ment of industrial homeworkers in the certificates for other industries. industries defined in § 530.1 may be (Information collection requirements con- issued on the following terms and contained in paragraph (a) were approved by the ditions upon application therefore on Office of Management and Budget under con- forms provided by the Wage and Hour trol number 1235–0001) Division. Such forms shall be signed by [24 FR 729, Feb. 3, 1959, as amended at 43 FR both the homeworker and the em- 28470, June 30, 1978; 46 FR 50349, Oct. 9, 1981; ployer. 49 FR 44270, Nov. 5, 1984; 53 FR 45722, Nov. 10, (Approved by the Office of Management and 1988; 82 FR 2228, Jan. 9, 2017] Budget under control number 1235–0001) § 530.5 Investigation. [24 FR 729, Feb. 3, 1959, as amended at 49 FR 18294, Apr. 30, 1984; 82 FR 2228, Jan. 9, 2017] An investigation may be ordered in any case to obtain additional data or § 530.4 Terms and conditions for the facts. A medical examination of the issuance of individual homeworker worker or invalid may be ordered or a certificates. certification of facts concerning eligi- (a) Upon application by the bility for the certificate by designated homeworker and the employer on officers of the State or Federal Govern- forms provided by the Wage and Hour ment may be required. Division, certificates may be issued to the applicant employer authorizing the § 530.6 Termination of individual employment of a particular worker in homeworker certificates. industrial homework in a particular in- (a) A certificate shall be valid under dustry, provided that the application is the terms set forth in the certificate

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for a period to be designated by the Ad- regulations in part 516 of this chapter ministrator or his authorized rep- and failure to keep such records shall resentative. Application for renewal of be sufficient cause for the cancellation any certificate shall be filed in the of certificates issued to such an em- same manner as an original application ployer. under this part. (b) No effective certificate shall ex- § 530.10 Delegation of authority to pire until action on an application for grant, deny, or cancel an individual renewal shall have been finally deter- homeworker certificate. mined, provided that such application The Administrator may from time to has been properly executed in accord- time designate and appoint members of ance with the requirements, and filed the Administrator’s staff or State not less than 15 nor more than 30 days Agencies as his authorized representa- prior to the expiration date. A final de- tives with full power and authority to termination means either the granting grant, deny, or cancel homework cer- of or initial denial of the application tificates. for renewal of a certificate, or with- [43 FR 28470, June 30, 1978] drawal of the application. A ‘‘properly executed’’ application is one which § 530.11 Petition for review. contains the complete information re- Any person aggrieved by the action quired on the form. of an authorized representative of the [24 FR 729, Feb. 3, 1959, as amended at 27 FR Administrator in granting or denying a 7020, July 25, 1962] certificate may, within 15 days thereafter or within such additional time as § 530.7 Revocation and cancellation of the Administrator for cause shown individual homeworker certificates. may allow, file with the Administrator Any certificate may be revoked for a petition for review of the action of cause at any time. Violation of any such representative praying for such provision of the Fair Labor Standards relief as is desired. Such petition for Act shall be sufficient grounds for rev- review, if duly filed, will be acted upon ocation of all certificates issued to an by the Administrator or an authorized employer, in which event no certifi- representative of the Administrator cates shall be issued to the offending who took no part in the proceeding employer for a period of up to one year. being reviewed. All interested parties Before any certificate is cancelled, will be afforded an opportunity to however, interested parties shall be no- present their views in support of or in tified in writing of the facts war- opposition to the matters prayed for in ranting such cancellation and afforded the petition. an opportunity to demonstrate or achieve compliance. In appropriate cir- § 530.12 Special provisions. cumstances, the Administrator shall (a) Gloves and mittens industry. Any afford an opportunity for a hearing to certificate issued to an industrial resolve the disputed matter. homeworker by the New York State Department of Labor under paragraph [49 FR 44271, Nov. 5, 1984] II of Home Work Order No. 4 Restrict- § 530.8 Preservation of individual ing Industrial Homework in the Glove homeworker certificates. Industry, dated June 28, 1941, will be given effect by the Administrator as a A copy of all certificates provided to certificate permitting the employment the employer under this part shall be of the homeworker under the terms of maintained for a period of at least § 530.4 for the period during which such three years after the last employment certificate shall continue in force. under the certificate. (b) Jewelry manufacturing industry. [49 FR 44271, Nov. 5, 1984] Nothing contained in the regulations in this part shall be construed to pro- § 530.9 Records and reports. hibit the employment, as The issuance of a certificate shall not homeworkers, of American Indians re- relieve the employer of the duty of siding on the Navajo, Pueblo, and Hopi maintaining the records required in the Indian Reservations, who are engaged

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in producing genuine hand-fashioned maintaining all other records required jewelry on the Indian reservations by part 516 of this chapter. mentioned, provided the employment [24 FR 729, Feb. 3, 1959, as amended at 43 FR of such homeworker is in conformity 28470, June 30, 1978] with the following conditions: (1) That each employer of one or more Indian homeworkers engaged in Subpart B—Homeworker Employer making hand-fashioned jewelry on Certificates these Indian reservations shall submit in duplicate to the regional office of SOURCE: 53 FR 45722, Nov. 10, 1988, unless the Wage and Hour Division for the re- otherwise noted. gion in which the employer’s place of business is located, on April 1, August § 530.101 General. 1, and December 1 of each year, the (a) Except as provided in subpart C, a name and address of such employee en- certificate may be issued to an em- gaged during the preceding 4-month pe- ployer authorizing the employment of riod in making hand-fashioned jewelry homeworkers in on Indian reservations; (1) The knitted outerwear, gloves and (2) That each employer of one or mittens, and embroideries industries as more Indian homeworkers engaged in defined in paragraphs (g), (h), and (k), making hand-fashioned jewelry on respectively, at § 530.1, effective Janu- these Indian reservations shall file cop- ary 9, 1989; ies of the piece rates in duplicate with (2) In the button and buckle and the regional office of the Wage and handkerchief manufacturing industries Hour Division for the region in which as defined in paragraphs (i) and (j), re- the employer’s place of business is lo- spectively, of § 530.1, effective July 9, cated on April 1, August 1, and Decem- 1989; and ber 1 of each year, and (3) In the jewelry industry as defined (3) That each employer of one or in paragraph (f) of § 530.1, effective July more Indian homeworkers engaged in 9, 1989, but only where the employer’s making hand-fashioned jewelry on homeworkers are engaged exclusively these Indian reservations shall keep, in the stringing of beads and other jew- maintain, and have available for in- elry and the carding and packaging of spection by the Administrator or the jewelry. The terms ‘‘carding and pack- Administrator’s authorized representa- aging of jewelry’’ include the attaching tive at any time, records and reports of jewelry to cards, boxing and wrap- showing with respect to each of the ping, and the use of common household homeworkers engaged in making hand- glues available to the general public, fashioned jewelry on these Indian res- but do not include potentially haz- ervations, the following information: ardous operations such as the use of in- (i) Name of the homeworker. dustrial glues, epoxies, soldering irons, (ii) Address of the homeworker. or heating elements. (iii) Date of birth of the homeworker, (b) This certificate may be issued ir- if under 19 years of age. respective of whether individual (iv) Description of work performed. homeworkers meet the conditions set (v) Amount of cash wage payments forth in paragraph (a) of § 530.4 of Sub- made to the homeworker for each pay part A. Unless suspended or revoked, period. such certificates are valid for two-year (vi) Date of such payment. periods. Applications for renewals must (vii) Schedule of piece rates paid. be submitted no later than thirty (30) These records shall be kept by each days prior to the expiration date of the employer for each of the employer’s current certificate. Except as provided homeworkers engaged in making hand- in subpart A, in the absence of a cer- fashioned jewelry on Indian reserva- tificate, the employment of tions, as provided in this section, in homeworkers in these industries is pro- lieu of the records required under hibited, and an employer violating this §§ 516.2 and 516.31 of this chapter: Pro- prohibition is subject to all the sanc- vided, however, That nothing in this tions provided in the Fair Labor Stand- section shall relieve an employer from ards Act and in this part, including an

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injunction restraining the employment cordance with section 11 of the Act and of homeworkers. part 516 of this chapter. (c) Certificates authorizing such em- (d) All homeworkers shall complete ployment may be issued on the fol- homeworker handbooks in accordance lowing terms and conditions upon writ- with § 516.31 of part 516. ten application to the Administrator, (e) All homeworkers will be in- Wage and Hour Division, U.S. Depart- structed to accurately record all hours ment of Labor, 200 Constitution Ave- worked, piece work information, and nue NW., Washington, DC 20210. business-related expenses in the handbooks. [53 FR 45722, Nov. 10, 1988, as amended at 82 FR 2228, Jan. 9, 2017] (f) All records shall be made available for inspection and transcription § 530.102 Requests for employer cer- by the Administrator or a duly author- tificates. ized and designated representative, or The initial request for certification transcription by the employer upon or renewal application shall be signed written request. by the employer and shall contain the (g) Piece rates paid to homeworkers name of the firm, its mailing address, shall be established using stop watch the physical location of the firm’s prin- time studies or other work measure- cipal place of business and a descrip- ment methods. tion of the business operations and (h) All homeworkers shall be encour- items produced. In addition, the initial aged to cooperate with the Department or renewal application shall contain in any investigation that may be made. the names, addresses, and languages (if (i) With respect to jewelry manufac- other than English) spoken by the turing, no operations other than the homeworkers that are currently em- stringing of beads and other jewelry ployed (if any) or expected to be em- and the carding and packaging of jew- ployed. The employer shall also pro- elry will be performed by vide the Administrator, within thirty homeworkers. (30) days, a notice of each change of ad- § 530.104 Bonding or security pay- dress of the principal place of business. ments. The notification shall be in writing and addressed to the Administrator, Wage (a) Where in the Administrator’s and Hour Division, 200 Constitution judgment there is not sufficient reason Avenue NW., Washington, DC 20210. to believe that the Act will be com- plied with or that money will be avail- [82 FR 2228, Jan. 9, 2017] able if violations of the Act occur, the Administrator may condition issuance § 530.103 Employer assurances. or renewal of a certificate to an em- In order to be granted a certificate ployer upon the furnishing of a bond authorizing the employment of indus- with a surety or sureties satisfactory trial homeworkers, the employer must to the Administrator. provide written assurances concerning (b) The Administrator shall condition the employment of homeworkers sub- issuance or reinstatement of a certifi- ject to section 11(d) of the Fair Labor cate to any employer whose applica- Standards Act to the effect that: tion for a certificate had previously (a) All homeworkers shall be paid in been denied, or whose certificate had accordance with the monetary provi- been revoked, upon the furnishing of a sions of the Act. bond. (b) All homeworkers shall be em- (c) Any bond required by the Admin- ployed in compliance with the child istrator under paragraph (a) or (b) of labor provisions contained in section 12 this section shall be in an amount de- of the Act and regulations and orders termined by the Administrator, up to issued pursuant to section 12. All $2500 for each homeworker to be em- homeworkers will be instructed not to ployed by such employer under the cer- permit minors to work in violation of tificate. In lieu of a bond, the employer such provisions. may furnish a cash payment of equal (c) Records of hours worked and amount, to be held in a special deposit wages paid shall be maintained in ac- account by the Administrator for the

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period during which the certificate is § 530.202 Piece rates—work measure- in effect. Such bond, or cash payment, ment. shall be subject to payment or for- (a) No certificate will be issued pur- feiture, in whole or in part, upon a suant to § 530.101 of subpart B to an em- final determination that the employer ployer who pays homeworkers based on has failed to pay minimum wages or piece rates unless the employer estab- overtime compensation to lishes the piece rates for the different homeworkers in accordance with the types of items produced using stop Act. Any sums thus paid or forfeited to watch time studies or other work the Administrator shall be disbursed to measurement methods. Documentation affected homeworkers in accordance of the work measurements used to es- with section 16(c) of the Act. tablish the piece rates, and the cir- (d) At the Administrator’s discretion, cumstances under which such measure- the obligation of a bond may be re- ments were conducted shall be retained lieved, and any cash payment held as for three years and made available on security in lieu thereof may be re- request to the Wage and Hour Division. funded (together with any interest ac- (b) The fact that an employer bases crued thereon), upon a subsequent de- piece rates on work measurements termination that the employer is in which indicate that the homeworkers compliance with the Act and that suffi- would receive at least the minimum cient funds will be available to meet wage at such piece rate(s) does not re- back wage payment obligations in the lieve the employer from the Act’s re- event of violations of the Act. quirement that each homeworker actu- ally receive not less than the minimum § 530.105 Investigations. wage for all hours worked. Any employer in a restricted indus- § 530.203 Outstanding violations and try who requests certification to em- open investigations. ploy homeworkers will be investigated A homework certificate will not be promptly after the issuance of the cer- issued or renewed by the Administrator tificate by the Wage and Hour Division. if, within the previous three years, the Where such an employer is found to be Administrator has found and notified in violation of the FLSA, and the vio- the applicant of a monetary violation lations are corrected and future com- of the Fair Labor Standards Act in an pliance is promised, the firm will be re- amount certain, or the Administrator investigated to assure that full FLSA has assessed a civil money penalty pur- compliance has, in fact, been achieved. suant to subpart D of these regulations or part 579 of this chapter (child labor), Subpart C—Denial/Revocation of and such amounts are unpaid, or if the Homeworker Employer Certifi- applicant is the subject of a revocation cates proceeding at the time of the application for renewal, or the applicant is the subject of an open investigation. SOURCE: 53 FR 45723, Nov. 10, 1988, unless otherwise noted. § 530.204 Discretionary denial or revocation. § 530.201 Conflict with State law. Where the Administrator finds that No certificate will be issued pursuant the employment of homeworkers under to § 530.101 of subpart B above author- a certificate is likely to result in viola- izing the employment of homeworkers tions of the Fair Labor Standards Act, in an industry in a State where the the regulations issued thereunder, or Governor (or authorized representa- the assurances required by this part, tive) has advised the Administrator of the Administrator may deny or revoke the Wage and Hour Division in writing the certificate. that the employment of homeworkers in such industry, as defined in para- § 530.205 Mandatory denial or revoca- graphs (f) through (k) of § 530.1, is ille- tion. gal by virtue of a State labor standards The Administrator shall deny or re- or health and safety law. voke a certificate in accordance with

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the following standards and for the pe- ate in a Wage and Hour investigation riod specified in the standards: by a certificate holder which impedes (a) Serious wage violations. Upon a the investigation, the certificate shall finding by the Administrator of a seri- be denied or revoked for a period of one ous wage violation, a certificate shall to three years, depending on the cir- be denied (including refusal to renew) cumstances. For purposes of this regu- or revoked for one year. A serious wage lation, cooperation includes providing violation is defined as minimum wage records upon request to Wage and Hour or overtime pay violations of the Act compliance officers, identifying totalling $10,000 or more with respect homeworkers of the certificate holder, to homeworkers; or minimum wage and encouraging homeworkers to make violations where 10 percent or more of themselves available in connection a certificate holder’s homeworkers (but with an investigation. in all cases at least two homeworkers) (f) Serious recordkeeping violations. failed to receive at least 80 percent of Upon a finding by the Administrator the minimum wage for all hours that a certificate holder has engaged in worked for 6 or more weeks in any 3 a serious recordkeeping violation, the month period; or minimum wage or certificate may be revoked for up to overtime pay violations affecting more one year. Upon a second finding by the than half of the homeworkers of the Administrator of a serious record- certificate holder for 6 or more weeks keeping violation, a certificate shall be in any 3 month period. All other wage denied or revoked for one to three violations are deemed non-serious wage years. A serious recordkeeping viola- violations for purposes of this section. tion is defined as one where, either (b) Repeated wage violations. For re- through errors in or omissions of repeated wage violations found by the quired information, the name and cur- Administrator, a certificate shall be rent address of homeworkers and the denied or revoked for one to three data which is necessary for the accu- years, depending on the seriousness rate determination of hours worked by and frequency of the violations. or wages paid to homeworkers or data (c) Child labor violations. Upon a find- necessary for the computation of wages ing by the Administrator of a violation of the child labor provisions of section owed to homeworkers is unavailable 12 of the Fair Labor Standards Act and with respect to 10 percent or more of the regulations at part 570 of this title, the homeworkers. a certificate shall be denied or revoked (g) Deliberate misstatement in an appli- for one year. Upon a second finding by cation for a certificate or in other docu- the Administrator of such a violation, ments. Upon a finding by the Adminis- the certificate shall be denied or re- trator of a deliberate misstatement of voked for three years. a material fact in an application for a (d) Failure to pay back wages or civil certificate, in payroll records, or in money penalties judged owing. Upon the any other information submitted to failure of a certificate holder to pay the Wage and Hour Division or main- within 60 days back wages or civil tained by the employer pursuant to money penalties finally judged by a these regulations, the certificate shall court, administrative law judge or be denied or revoked for one to three other appropriate authority, as the years. case may be, to be owed by the certifi- (h) Discrimination against a cate holder, or agreed to be paid by the homeworker. Upon a finding by the Ad- certificate holder, or within such ministrator that a certificate holder longer period as may be specified in the has discharged or otherwise discrimi- final order or agreement, a certificate nated against a homeworker with re- shall be denied or revoked for up to one spect to the homeworker’s compensa- year or for such period as such obligation or terms, conditions, or privileges tion shall remain unpaid if longer than of employment because the one year. homeworker engaged in protected ac- (e) Failure to cooperate in an investiga- tivity, the certificate shall be denied or tion. Where the Administrator finds ob- revoked for three years. Protected ac- struction of or other failure to cooper- tivity is defined as: (1) Any complaint

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of a violation of the Act to the em- violation of the FLSA related to home- ployer, the Department or other appro- work (except child labor violations, priate authority, or (2) any action which are subject to civil money pen- which furthers the enforcement of or alties pursuant to part 579 of this chap- compliance with the Act, such as giv- ter), or for any violation of the ing information to a Wage and Hour homeworker regulations or employers’ compliance officer. assurances pursuant to this part, which are not so serious as to warrant denial § 530.206 Special circumstances. or revocation of a certificate. Accord- At the discretion of the Adminis- ingly, no civil money penalty will be trator, a certificate need not be denied assessed for conduct which serves as or revoked pursuant to §§ 530.204 or the basis of proposed denial or revoca- 530.205 of this subpart if the Adminis- tion of a certificate. (See subpart C of trator finds all of the following: this part.) Civil money penalties will (a) The certificate holder, despite the exercise of due care, did not know and be assessed only against employers who did not have reason to know of the vio- are operating under a certificate or lations; who are seeking certification. (b) All back wages and civil money penalties found by the Administrator § 530.302 Amounts of civil money penalties. to be owing by the certificate holder have been paid; and (a) A civil money penalty, not to ex- (c) The certificate holder has taken ceed $1,071 per affected homeworker for appropriate steps to prevent recurrence any one violation, may be assessed for of the violations. any violation of the Act or of this part or of the assurances given in connec- Subpart D—Civil Money Penalties tion with the issuance of a certificate. (b) The amount of civil money pen- SOURCE: 53 FR 45724, Nov. 10, 1988, unless alties shall be determined per affected otherwise noted. homeworker within the limits set forth in the following schedule, except that § 530.301 General. no penalty shall be assessed in the case A system of civil money penalties is of violations which are deemed to be de established to provide a remedy for any minimis in nature:

Penalty per affected homeworker Nature of violation Repeated, in- Minor Substantial tentional or knowing

Recordkeeping ...... $21–214 $214–428 $428–1,071 Monetary violations ...... 21–214 214–428 Employment of homeworkers without a certificate ...... 214–428 428–1,071 Other violations of statutes, regulations or employer assurances ...... 21–214 214–428 428–1,071

[81 FR 43450, July 1, 2016, as amended at 82 (2) Extent to which the violation is FR 5381, Jan. 18, 2017; 83 FR 13, Jan. 2, 2018; under the employer’s control; 84 FR 218, Jan. 23, 2019; 85 FR 2298, Jan. 15, (3) Non-culpable ignorance of the re- 2020] quirements of the Act or regulations; § 530.303 Considerations in deter- (4) False documents or representa- mining amounts. tions; and (5) Exercise of due care. (a) In determining the amount of a (b) An employer’s financial inability penalty within any range, the Adminis- to meet obligations under the Act shall trator shall take into account the pres- not constitute a mitigating or extenu- ence or absence of circumstances such ating circumstance. as the following: (1) Good faith attempts to comply with the Act or regulations;

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(c) No civil money penalty shall be mary proceeding under § 530.412 of this assessed against an employer, who ap- subpart. plies for a certificate, solely for em- (e) Inform any affected persons that ploying homeworkers, provided the em- in the absence of a timely request for a ployer is not currently under investiga- hearing the determination of the Ad- tion by the Wage and Hour Division. ministrator shall become final and unappealable. § 530.304 Procedures for assessment. Assessment of penalties pursuant to § 530.403 Request for hearing. this section, including administrative (a) Except in the case of an emer- proceedings, shall be in accordance gency revocation under § 530.411 of this with the procedures set out in subpart subpart, a request for an administra- E of this part. tive hearing on a determination referred to in § 530.402 of this subpart Subpart E—Administrative shall be made in writing to the Admin- Procedures istrator of the Wage and Hour Division, U.S. Department of Labor, Washington, DC 20210, and must be received no later SOURCE: 53 FR 45725, Nov. 10, 1988, unless than thirty (30) days after issuance of otherwise noted. the notice referred to in § 530.402 of this § 530.401 Applicability of procedures subpart. and rules. (b) No particular form is prescribed for any request for a hearing permitted The procedures and rules contained by this part. However, any such request herein prescribe the administrative shall be typewritten or legibly written; process which will be applied with re- specify the issue or issues stated in the spect to a determination to deny (in- notice of determination giving rise to cluding refusal to renew) or revoke a such request; state the specific reason certificate and to a determination to or reasons why the person requesting assess civil money penalties. Special the hearing believes such determina- rules and procedures for the emergency tion is in error; be signed by the person revocation of certificates are prescribed in § 530.412 of this subpart. making the request or by an authorized representative of such person; and in- § 530.402 Notice of determination. clude the address at which such person or authorized representative desires to Whenever the Administrator deter- receive further communications relat- mines to deny or revoke a certificate ing thereto. or determines to assess a civil money (c) In the case of an emergency rev- penalty, the person affected by such de- ocation, a request for an administra- termination shall be notified of the de- tive hearing shall be made in writing termination in writing, by certified to the Chief Administrative Law mail to the last known address. The Judge, U.S. Department of Labor, 1111 notice required shall: (a) Set forth the determination of the 20th Street, NW., suite 700, Wash- Administrator, including the specific ington, DC 20036, and must be received statutory or regulatory provision or no later than 20 days after the issuance assurance violated, the reasons for de- of the notice referred to in § 530.402 of nying or revoking a certificate, or the this subpart. amount of any civil money penalty as- [53 FR 45725, Nov. 10, 1988, as amended at 82 sessment and the reason or reasons FR 2228, Jan. 9, 2017] therefor. (b) Set forth the right to request a § 530.404 Referral to Administrative hearing on such determination. Law Judge. (c) Set forth the time and method for Upon receipt of a timely request for a requesting a hearing, and the proce- hearing, the request and a copy of the dures relating thereto, as set forth in notice of administrative determination § 530.403 of this subpart. complained of, shall, by Order of Ref- (d) Inform any affected person or per- erence, be referred to the Chief Admin- sons that in lieu of formal proceedings istrative Law Judge, for a determina- there is available an alternative sum- tion in an administrative proceeding as

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provided herein. The notice of adminis- the decision. To be effective, such peti- trative determination and request for tion must be received by the Secretary hearing shall, respectively, be given within 30 days of the date of the deci- the effect of a complaint and answer sion of the Administrative Law Judge. thereto for purposes of the administra- Copies of the petition shall be served tive proceedings, subject to any amend- on all parties and on the Chief Admin- ment that may be permitted under 29 istrative Law Judge. If the Secretary CFR part 18. does not issue a notice accepting a petition for review within 30 days after § 530.405 General. receipt of a timely filing of the peti- Except as specifically provided in tion, or within 30 days of the date of these regulations, the ‘‘Rules of Prac- the decision if no petition has been re- tice and Procedure for Administrative ceived, the decision of the Administra- Hearings before the Office of Adminis- tive Law Judge shall be deemed the trative Law Judges’’ established by the final agency action. Secretary at 29 CFR part 18 shall apply to administrative proceedings de- § 530.408 Notice of the Secretary to re- scribed in this subpart. view decision. Whenever the Secretary determines § 530.406 Decision and order of Admin- to review the decision and order of an istrative Law Judge. Administrative Law Judge, the Sec- (a) The Administrative Law Judge retary shall notify each party of the shall prepare, after completion of the issue or issues raised; the form in hearing and closing of the record, a de- which submission shall be made (i.e., cision on the issues referred by the Ad- briefs, oral argument, etc.); and, the ministrator. time within which such presentation (b) The decision of the Administra- shall be submitted. tive Law Judge shall include a state- ment of findings and conclusions, with § 530.409 Final decision of the Sec- reasons and basis therefor, upon each retary. material issue presented on the record. The Secretary’s final decision shall If the Administrative Law Judge finds be served upon all parties and the Ad- that the Administrator has established ministrative Law Judge, in person or by a preponderance of the evidence the by certified mail. factual basis for the determination to deny or revoke a certificate or to as- § 530.410 Special procedures. sess a civil money penalty, that deter- In a revocation proceeding pursuant mination shall be affirmed. The deci- to § 530.205(d) of subpart C of this part sion shall also include an appropriate arising as a result of a certificate hold- order which may affirm, deny, reverse, er’s failure to pay back wages or civil or modify, in whole or in part, the de- money penalties judged owing, the Ad- termination of the Administrator. The ministrator may file a motion for expe- reason or reasons for such order shall dited decision, attaching to the notice, be stated in the decision. by affidavit or other means, evidence (c) The decision shall be served on all that a final order has been entered or parties and the Secretary in person or agreement signed requiring respondent by certified mail. The decision when to pay back wages or civil money pen- served by the Administrative Law alties and that the back wages or civil Judge shall constitute the final order money penalties have not been paid. of the Department of Labor unless the The respondent in the proceeding shall Secretary, as provided for in § 530.407 of have 20 days in which to file a coun- this subpart, determines to review the tering affidavit or other evidence. If no decision. evidence countering the material as- sertions of the Administrator has been § 530.407 Procedures for initiating and submitted within 20 days, the Adminis- undertaking review. trative Law Judge shall, within 30 days Any party desiring review of the de- thereafter, affirm the revocation or decision of the Administrative Law Judge nial of the certificate. If the respond- may petition the Secretary to review ent does timely file such evidence, the

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Administrative Law Judge shall sched- tion is filed, the decision of the Admin- ule a hearing pursuant to § 530.411(c) of istrative Law Judge shall be deemed this subpart and the case shall be sub- the final agency action. ject to the expeditious procedures fol- (f) The Secretary’s decision shall be lowing therein. issued within 60 days of the notice by the Secretary accepting the submis- § 530.411 Emergency certificate rev- sion, and shall be served upon all par- ocation procedures. ties and the Administrative Law (a) When the Administrator deter- Judge, in person or by certified mail. mines that immediate revocation of a homework certificate is necessary to § 530.412 Alternative summary pro- safeguard the payment of minimum ceedings. wages to homeworkers, a notice of pro- In lieu of an administrative hearing posed emergency revocation of a cer- before an Administrative Law Judge tificate shall be sent to the certificate under the above procedures, an appli- holder pursuant to § 530.402 of this sub- cant or certificate holder who does not part setting forth reasons requiring dispute the factual findings of the Ad- emergency revocation of the certifi- ministrator may, within 30 days of the cate. date of issuance of the notice of denial, (b) If no request for a hearing pursu- revocation, or assessment (or within 20 ant to § 530.403 of this subpart is re- days in the case of a notice of emer- ceived within 20 days of the date of re- gency revocation) petition the Admin- ceipt of the notice by the certificate istrator instead to reconsider the de- holder, the proposed revocation of the nial or revocation of the certificate or certificate shall become final. the assessment of civil money pen- (c) The Office of Administrative Law alties. An applicant or certificate hold- Judges shall notify the parties at their er electing this informal procedure last known address, of the date, time may appear before the Administrator and place for the hearing, which shall in person, make a written submission be no more than 60 days from the date to the Administrator, or both. Such re- of receipt of the request for the hear- consideration by the Administrator ing. All parties shall be given at least shall be available only upon waiver by 5 days notice of such hearing. No re- the applicant or certificate holder of quests for postponement shall be grant- the formal hearing procedures provided ed except for compelling reasons. by the above regulations. (d) The Administrative Law Judge shall issue a decision pursuant to § 530.413 Certification of the record. § 530.406 of this subpart within 30 days Upon receipt of a complaint seeking after the termination of a proceeding review of a final decision issued pursu- at which evidence was submitted. The ant to this part filed in a United States decision shall be served on all parties District Court, after the administra- and the Secretary by certified mail and tive remedies have been exhausted, the shall constitute the final order of the Chief Administrative Law Judge shall Department of Labor unless the Sec- promptly index, certify and file with retary determines to review the deci- the appropriate United States District sion. Court, a full, true, and correct copy of (e) Any party desiring review of the the entire record, including the tran- decision of the Administrative Law script of proceedings. Judge may petition the Secretary to review the decision of the Administra- § 530.414 Equal Access to Justice Act. tive Law Judge. To be effective, such Proceedings under this part are not petition must be received by the Sec- subject to the provisions of the Equal retary within 30 days of the date of the Access to Justice Act. In any hearing decision of the Administrative Law conducted pursuant to these regula- Judge. If the Secretary does not issue a tions, Administrative Law Judges shall notice accepting a petition for review have no power or authority to award within 15 days after receipt of a timely attorney fees or other litigation ex- filing of the petition, or within 30 days penses pursuant to the Equal Access to of the date of the decision if no peti- Justice Act.

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