19 Del. Admin. Code § 1103-7.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 1103-7.0 - Enforcement by the Secretary of Labor

7.1 Investigations

7.1.1 The Department may investigate a suspected violation of the State WARN Act when a complaint is filed or on its own motion, regardless of whether a complaint has been filed.

7.1.2 Consistent with the authority granted under 19 Del.C. Chs. 1 and 19, the Department may exercise the following powers when conducting investigations:

7.1.2.1 Inspect records, including any information of an employer necessary for determining whether a violation of the State WARN Act occurred or the validity of any defense;

7.1.2.2 Collect facts or statistics, through interviews, requests for information, or similar means;

7.1.2.3 Issue and enforce subpoenas to compel the appearance of witnesses or the production of papers, books, accounts, payrolls, documents, records, or testimony;

7.1.2.4 Administer oaths;

7.1.2.5 Certify to official acts; and

7.1.2.6 Depose witnesses.

7.1.3 In general, subpoenas shall be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome. More specifically, subpoenas shall:

7.1.3.1 Be issued in the name of the Department;

7.1.3.2 Direct the person designated to personally appear and give testimony or to produce the items sought;

7.1.3.3 State the time when and place where the person designated must appear or the items sought must be delivered; and

7.1.3.4 Be served either by personal service by any person 18 or more years of age by delivery of a copy thereof to the person named therein, by overnight delivery by commercial courier, or by registered or certified mail, return receipt requested.

7.1.4 The Department shall complete its investigations as promptly as reasonably possible.

7.1.5 If an employer fails or refuses to cooperate with any portion of the Department's investigation, reasonable inferences will be made against the employer on relevant issues. The Department WARN Administrator may rely on those inferences in reaching the preliminary determination, and unless the employer satisfactorily rebuts the inferences by presenting contrary evidence at a hearing, the Secretary also may rely on those inferences in the final order.

7.2 Commencing an Action

7.2.1 Either an affected employee or the Department may commence an action by filing with the Department WARN Administrator a complaint that alleges a violation of the State WARN Act.

7.2.2 A complaint shall be in writing on the form prescribed by the Department.

7.3 Notice of Action or Investigation. The Department shall notify the employer by certified and First-Class mail when a complaint has been filed or an investigation has been initiated.

7.4 Preliminary Determination

7.4.1 After the Department conducts its investigation, the Department WARN Administrator shall issue a preliminary determination as to whether or not the employer violated the State WARN Act. The preliminary determination shall set forth the supporting facts and any recommended penalties.

7.4.1.1 If the Department WARN Administrator determines that no violation occurred, the Secretary shall issue an order dismissing the complaint.

7.4.1.2 If the Department WARN Administrator determines that one or more violations occurred, the employer may request within 20 days of receiving the preliminary determination that the Department schedule an administrative hearing on the violations. The Department shall include a notice of the right to request a hearing and the 20-day deadline in the same mailing as the preliminary determination. If the employer fails to timely request an administrative hearing, the Secretary shall issue a final order finding the employer violated the State WARN Act and awarding appropriate relief, including any civil penalties.

7.4.2 The Department shall provide a copy of the preliminary determination to the employer by certified and First-Class mail as soon as reasonably possible after the conclusion of the investigation.

7.5 Hearings

7.5.1 The Department will promptly schedule requested hearings and shall provide at least 20 days' notice of the hearing. The notice must:

7.5.1.1 Describe the subject matter of the proceedings;

7.5.1.2 Give the date, time, and place of the hearing;

7.5.1.3 Cite 19 Del.C. Ch. 19 and this regulation as the Department's authority to enforce the alleged violations and conduct the proceedings;

7.5.1.4 Inform the employer of the rights to present evidence, to be represented by counsel, and to appear personally or by other representative at the hearing; and

7.5.1.5 Inform the employer of the Department's obligation to reach its final decision based upon the evidence received.

7.5.2 The Secretary may serve as the hearing officer or appoint a designee within the Division of Employment and Training to serve as the hearing officer. The hearing officer will rule upon all motions and questions relating to the administrative hearing. The hearing officer shall not be bound by rules of evidence or procedure. The hearing officer is empowered to:

7.5.2.1 Issue subpoenas for witnesses and other evidence, either on the agency's initiative or at the request of any party;

7.5.2.2 Administer oaths to witnesses;

7.5.2.3 Exclude plainly irrelevant, immaterial, insubstantial, cumulative, and privileged evidence;

7.5.2.4 Limit unduly repetitive proof, rebuttal, and cross-examination;

7.5.2.5 Cause interrogatories to issue and depositions to be taken; and

7.5.2.6 Hold prehearing conferences for the settlement or simplification of issues by consent, for the disposal of procedural requests or disputes, and to regulate and expedite the course of the hearing.

7.5.3 Before the hearing, or at any time directed by the hearing officer, the Department and the employer will exchange documents, records, and other evidence relevant to the matters at issue during the hearing. If a party fails to make the respective items available to the other party, then upon application of the other party, the hearing officer may dismiss the complaint, exclude consideration of the withheld items, make factual inferences against the withholding party on issues relevant to the withheld items, or order other appropriate relief within hearing officer's powers.

7.5.5 Either the Department or the employer may request a continuance or other changes to the timing, manner, or location of the hearing. A request must be made to the hearing officer within a reasonable time prior to the hearing, and the other party may oppose it. When ruling on the request, the hearing officer may consider the sufficiency of the grounds for the request, the length of time appropriate for a continuance, and the degree of prejudice, if any, to the other party.

7.5.6 At the hearing, the parties shall have the opportunity to express all pertinent facts and circumstances; to introduce evidence; to examine and cross-examine witnesses; to advance any arguments without undue interference; and to question or refute any testimony or evidence.

7.5.7 The Department shall have the burden of proving each alleged violation of the State WARN Act by a preponderance of the evidence. The employer shall have the burden of proving that any exceptions apply by a preponderance of the evidence. Likewise, for the purpose of empowering the Secretary with the discretion to reduce the amount of the employer's liabilities or penalties owed for a violation, the employer shall have the burden of proving, by a preponderance of the evidence, that the employer's act or omission constituting the violation was in good faith and that the employer had reasonable grounds for believing the act or omission was not a violation.

7.5.8 The Department shall keep a record of the hearing from which a verbatim transcript can be made. Transcripts will be made at the request and expense of a party.

7.5.9 The Department shall keep a record of each case that includes all notices; correspondence between the Department and the employer; all exhibits, documents, and testimony admitted into evidence; all motions, responses, exceptions, and other similar writings submitted by the parties; and all preliminary determinations, summaries, interlocutory orders, and proposed and final orders.

7.6 Final Orders

7.6.1 If the Secretary's designee served as the hearing officer, the designee shall prepare a proposed order that briefly summarizes the evidence and recommends factual findings based upon the evidence, conclusions of law, and a decision. The Department shall promptly send the proposed order to the employer. Both parties shall have 20 days from the date of the proposed order to submit to the Secretary, in writing, exceptions to, comments on, and arguments respecting the proposed order.

7.6.2 The Secretary shall issue a final order after receiving a preliminary determination where no hearing is requested, after personally conducting a hearing, or after a designee conducts a hearing and the Secretary receives the parties' responses to the designee's proposed order, if any. The final order must be based upon the entire record of the case and, when applicable, the summaries and recommendations provided to the Secretary. The Secretary may rely on hearsay evidence admitted so long as it does not constitute the sole basis for the Secretary's determination. The final order must include:

7.6.2.1 A brief summary of the evidence;

7.6.2.2 Factual findings based upon the evidence;

7.6.2.3 Conclusions of law;

7.6.2.4 A determination as to whether the employer violated the State WARN Act;

7.6.2.5 If asserted by the employer, a determination as to whether any exception applied;

7.6.2.6 If asserted by the employer, a determination as to whether the employer acted or failed to act in good faith and with reasonable grounds to believe the act or omission was not a violation;

7.6.2.7 Awards of any back pay or the value of other liabilities owed to affected employees; and

7.6.2.8 Penalties assessed.

7.6.3 The Secretary shall sign the final order and immediately mail or deliver a copy to each party and each other person requesting it.

7.6.4 The right of a party aggrieved by a final order to seek judicial review is established by statute, 29 Del.C. § 10142. Parties should consult the Code and the Superior Court rules for appeal procedures.

19 Del. Admin. Code § 1103-7.0

28 DE Reg. 463 (12/1/2024) (Final)