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Note: Authority cited: Section 1777.7, Labor Code. Reference: Section 1777.7, Labor Code.
s 231.2. Proceedings Before Hearing on Alleged Willful Violations.
Note: Authority cited: Section 1777.7, Labor Code. Reference: Section 1777.7, Labor Code.
s 231.3. Proceedings After Issuance of a Citation.
Note: Authority cited: Section 1777.7, Labor Code. Reference: Section 1777.7, Labor Code.
s 231.4. Proceedings Before Hearing on Alleged Willful Violations.
Note: Authority cited: Section 17777.7, Labor Code. Reference: Section 17777.7, Labor Code.
s 232. Hearings on Alleged Violations.
Note: Authority cited: Section 1777.7, Labor Code. Reference: Section 1777.7, Labor Code.
s 232.01. Scope and Application of Rules.
(a) These Rules govern proceedings for review of Determinations of civil penalty or debarment under Labor Code section 1777.5 and 1777.7. The provisions of Labor Code section 1777.7, applicable provisions of chapter 4.5 of title 2, division 3, part 1 (commencing at Government Code section 11425.10) of the Government Code and these Rules apply to all such Determinations served on a Contractor, Subcontractor, or Responsible Officer on or after the effective date of these Rules and provide the exclusive method for an Affected Contractor, Subcontractor, or Responsible Officer to obtain review of any such Determination.
(b) These Rules do not govern debarment proceedings under Labor Code section 1777.1, nor prevailing wage enforcement under Labor Code section 1742, nor any criminal prosecution.
(c) These Rules do not preclude any remedies otherwise authorized by law to remedy violations of Division 2, Part 7, Chapter 1 of the Labor Code. These Rules do preclude challenge by an Affected Contractor, Subcontractor, or Responsible Officer to determinations of violations of Labor Code section 1777.5 except as provided herein.
(d) For easier reference, individual sections within these prevailing wage hearing regulations are referred to as "Rules" using only their last two digits. For example, this Section 232.01 may be referred to as Rule 01.
Note: Authority cited: Section 11400.20, Government Code; and Section 1777.7, Labor Code. Reference: Section 1777.7, Labor Code; and Section 11400.10, Government Code.
s 232.02. Definitions.
For the purpose of these Rules:
(a) "Administrator" means the Administrator of Apprenticeship, who is the Director of the Department of Industrial Relations;
(b) "Affected Contractor, Subcontractor, or Responsible Officer" means a contractor or subcontractor (as defined under Labor Code section 1722.1) or Responsible Officer (as defined herein at subpart (p)) to whom the Chief DAS has issued a Determination of civil penalty or debarment pursuant to Labor Code section 1777.7. ;
(c) "Awarding Body" means an awarding body or body awarding the contract (as defined in Labor Code section 1722);
(d) "Chief DAS" means the Chief of the Division of Apprenticeship Standards, who may act through his or her designee or the Division of Apprenticeship Standards;
(e) "DAS" means the Division of Apprenticeship Standards;
(f) "Debarment" means the denial of the right to bid on or be awarded or to perform work as a contractor or subcontractor on any public works contract, that has been issued by the Chief DAS under Labor Code section 1777.7;
(g) "Department" means the Department of Industrial Relations;
(h) "Determination" means a civil penalty or debarment issued by the Chief DAS or his or her designee pursuant to Labor Code section 1777.7;
(i) "Director" means the Director of the Department of Industrial Relations;
(j) "Division" means the Division of Apprenticeship Standards;
(k) "Hearing Officer" means any person appointed by the Director pursuant to Labor Code section 1777.7 to conduct hearings and other proceedings under Labor Code section 1777.7 and these Rules;
(l) "Joint Labor-Management Committee" means a joint labor-management committee established pursuant to the federal Labor Management Cooperation Act of 1978 (section 175a of Title 29 of the United States Code);.
(m) "Party" means an Affected Contractor, Subcontractor, or Responsible Officer , the Chief, DAS and any other Person who has intervened under subparts (a), (b), or (c) of Rule 08 (Section 232.08).
(n) "Person" means an individual, partnership, limited liability company, corporation, governmental subdivision or unit of a governmental subdivision, or public or private organization or entity of any character;
(o) "Representative" means a person authorized by a Party to represent that Party in a proceeding before a Hearing Officer;
(p) "Responsible Officer" means a person responsible for exercising supervision and control of a contractor's or subcontractor's operations as is necessary to secure compliance with the public works - including public works apprenticeship - obligations of a public works contractor or subcontractor set forth in Chapter 1 of Part 7 of Division 2 of the Labor Code, commencing with Section 1720.
(q) "Rule" refers to a section within sections 232.01-232.70 The Rule number corresponds to the last two digits of the full section number. (For example, Rule 08 is section 232.08.)
(r) "Settlement Officer" means a Hearing Officer as defined in subpart (k) who conducts a settlement meeting under the provisions of Rule 21 (Section 232.21).
(s) "Surety" means a surety (as defined in Civil Code section 2787) that issues a bond for the performance of a public works job, but only where the Surety assumed the contract for performance of the public works job by an Affected Contractor, Subcontractor, or Responsible Officer, and where the Surety operated the job when the violations of Labor Code section 1777.5 occurred.
(t) "Working Day" means any day that is not a Saturday, Sunday, or State holiday, as determined with reference to Code of Civil Procedure sections 12(a) and 12(b) and Government Code sections 6700 and 6701.
Note: Authority cited: Section 1777.7, Labor Code; and Section 11400.20, Government Code. Reference: Section 1777.7, Labor Code; and Sections 11405.40, 11405.60, 11405.70 and 11405.80, Government Code.
s 232.03. Computation of Time and Extensions of Time to Respond or Act.
(a) In computing the time within which a right may be exercised or an act is to be performed, the first day shall be excluded and the last day shall be included. If the last day is not a Working Day, the time shall be extended to the next Working Day.
(b) Unless otherwise indicated by proof of service, if the envelope was properly addressed, the mailing date shall be presumed to be: a postmark date imprinted on the envelope by the U.S. Postal Service if first-class postage was prepaid; or the date of delivery to a common carrier promising overnight delivery as shown on the carrier's receipt.
(c) Where service of any notice, decision, pleading or other document is by first class mail, and if within a given number of days after such service, a right may be exercised, or an act is to be performed, the time within which such right may be exercised or act performed is extended five days if the place of address is within the State of California, and 10 days if the place of address is outside the State of California but within the United States. However, this Rule shall not extend the time within which the Administrator may reconsider or modify a decision to correct an error (other than a clerical error) under Labor Code section 1777.7(c)(4).
(d) Where service of any notice, pleading, or other document is made by an authorized method other than first class mailing, extensions of time to respond or act shall be calculated in the same manner as provided under section 1013 of the Code of Civil Procedure, unless a different requirement has been specified by the appointed Hearing Officer or by another provision of these Rules.
Note: Authority cited: Section 1777.7, Labor Code. Reference: Section 1777.7, Labor Code.
s 232.04. Appointment of Hearing Officers; Delegation of Appointment Authority to Chief Counsel.
(a) Upon receipt of a Request for Review of a Determination of civil penalty or debarment, the Administrator, acting through the Chief Counsel (seesubpart (d) below), shall appoint an impartial Hearing Officer to conduct the review proceeding.
(b) The appointed Hearing Officer shall be an attorney employed by the Office of the Director - Legal Unit. However, if no attorney employed by the Office of the Director - Legal Unit is available or qualified to serve in a particular matter, the appointed Hearing Officer may be any attorney or administrative law judge employed by the Department, other than an employee of the Division of Apprenticeship Standards ( "DAS") or a person who has represented or advised the DAS on matters covered by Ch. 1 of Part 7 of Div. 2 of the Labor Code, commencing with Section 1720 within one year of the appointment, or who at any time has represented or advised the Affected Contractor, Subcontractor, or Responsible Officer regarding alleged violations of Ch. 1 of Part 7 of Div. 2 of the Labor Code, commencing with Section 1720.
(c) Any person appointed to serve as a Hearing Officer in any matter shall possess at least the minimum qualifications for service as an administrative law judge pursuant to Government Code section 11502(b) and shall be someone who is not precluded from serving under Government Code section 11425.30.
(d) The Administrator's authority under Labor Code section 1777.7(c) to appoint an impartial Hearing Officer is delegated in all cases to the Chief Counsel of the Office of the Director, or to the Chief Counsel's designated Assistant or Acting Chief Counsel when the Chief Counsel is unavailable or disqualified from participating in a particular matter. This delegation includes all related authority under Rule 40 [Section 232.40] below to appoint a different Hearing Officer to conduct all or any part of a review proceeding as well as the authority to consider and decide or to assign to another Hearing Officer for consideration and decision any motion to disqualify an appointed Hearing Officer.
Note: Authority cited: Section 1777.7, Labor Code; and Section 11400.20, Government Code. Reference: Section 1777.7, Labor Code; and Sections 11405.80, 11425.30 and 11425.40, Government Code.
s 232.05. Authority of Hearing Officers.
(a) In any proceeding assigned for hearing and decision under the provisions of Labor Code section 1777.7, the appointed Hearing Officer shall have full power, jurisdiction and authority to hold a hearing and ascertain facts for the information of the Administrator, to hold a prehearing conference, to issue a subpoena and subpoena duces tecum for the attendance of a Person and the production of testimony, books, documents, or other things, to compel the attendance of a Person residing anywhere in the state, to certify official acts, to regulate the course of a hearing, to grant a withdrawal, disposition or amendment, to order a continuance, to approve a stipulation voluntarily entered into by the Parties, to administer oaths and affirmations, to rule on objections, privileges, defenses, and the receipt of relevant and material evidence, to call and examine a Party or witness and introduce into the hearing record documentary or other evidence, to request a Party at any time to state the respective position or supporting theory concerning any fact or issue in the proceeding, to extend the submittal date of any proceeding, to exercise such other and additional authority as is delegated to Hearing Officers under these Rules or by an express written delegation by the Administrator, and to prepare a recommended decision, including a notice of findings, findings, and an order for approval by the Administrator.
(b) There shall be no right of appeal to or review by the Administrator of any decision, order, act, or refusal to act by an appointed Hearing Officer other than through the Administrator's review of the record in issuing or reconsidering a written decision under Rules 60 [Section 232.60] and 61 [Section 232.61] below.
Note: Authority cited: Section 1777.7, Labor Code; and Section 11400.20, Government Code. Reference: Section 1777.7, Labor Code; and Sections 11405.80, 11450.05, 11450.10, 11450.20 and 11450.30, Government Code.
s 232.06. Access to Hearing Records.
(a) Hearing case records shall be available for inspection and copying by the public to the same extent and subject to the same policies and procedures governing other records maintained by the Department. Hearing case records normally will be available for review in the office of the appointed Hearing Officer; provided however, that a case file may be temporarily unavailable when in use by the appointed Hearing Officer or by the Administrator or his or her designee.
(b) Nothing in this Rule shall authorize the disclosure of any record or exhibit that is required to be kept confidential or is otherwise exempt from disclosure by law or that has been ordered to be kept confidential by an appointed Hearing Officer.
Note: Authority cited: Section 1777.7, Labor Code; and Section 6253.4, Government Code. Reference: Section 1777.7, Labor Code; and Section 6253.4, Government Code.
s 232.07. Ex Parte Communications.
(a) Except as provided in this Rule, once a Request for Review is filed, and while the proceeding is pending, there shall be no direct or indirect communication regarding any issue in the proceeding to the appointed Hearing Officer or the Administrator, from the Chief DAS or any other Party or other interested Person, without notice and the opportunity for all Parties to participate in the communication.
(b) A communication made on the record in the hearing is permissible.
(c) A communication concerning a matter of procedure or practice is presumed to be permissible unless the topic of the communication appears to the Hearing Officer to be controversial in the context of the specific case. If so, the Hearing Officer shall so inform the other participant and may terminate the communication or continue it until after giving all Parties notice and an opportunity to participate. Any written communication concerning a matter of procedure or practice, and any written response, or a written memorandum identifying the participants and stating the substance of any such oral communication or response, shall be added to the case file so that all Parties have a reasonable opportunity to review it. Unless otherwise provided by statute or these Rules, the appointed Hearing Officer may determine a matter of procedure or practice based upon a permissible ex-parte communication. The term "matters of procedure or practice" shall be liberally construed.
(d) A communication from the Chief DAS to the Hearing Officer or the Administrator which is deemed permissible under Government Code section 11430.30 is permitted only if any such written communication and any written response, or a written memorandum identifying the participants and stating the substance of any such oral communication or response, is added to the case file so that all Parties have a reasonable opportunity to review it.
(e) If the Hearing Officer or the Administrator receives a communication in violation of this Rule, he or she shall comply with the requirements of Government Code section 11430.50.
(f) To the extent not inconsistent with Labor Code section 1777.7, the provisions of Article 7 of Chapter 4.5 of Title 2, Division 3, Part 1 (commencing with section 11430.10) of the Government Code governing ex parte communications in administrative adjudication proceedings shall apply to review proceedings conducted under these Rules.
(g) This Rule shall not be construed as prohibiting communications between the Administrator and the Chief DAS or between the Administrator and any other interested Person on issues or policies of general interest that coincide with issues involved in a pending review proceeding;provided that(1) the communication does not directly or indirectly seek to influence the outcome of any pending proceeding; (2) the communication does not directly or indirectly identify or otherwise refer to any pending proceeding; and (3) the communication does not occur at a time when the Director or the other party to the communication knows that a proceeding in which the other party to the communication is interested is under active consideration by the Administrator.
Note: Authority cited: Section 1777.7, Labor Code; and Section 11400.20, Government Code. Reference: Section 1777.7, Labor Code; and Sections 11430.10, 11430.20, 11430.30, 11430.40, 11430.50, 11430.60, 11430.70 and 11430.80, Government Code.
s 232.08. Intervention and Participation by other Interested Persons.
(a) A bonding company and any Surety on a bond that secures the performance of the job covered by the Determination shall be permitted to intervene as a matter of right in any pending review filed by the Affected Contractor, Subcontractor, or Responsible Officer from the Determination in question; provided that, intervention is sought at or before the first prehearing conference held pursuant to Rule 31 [Section 232.31] below and within either 15 days after the bonding company or Surety was served with a copy of the Determination, or 15 days after the filing of the request for review, whichever is later. Thereafter, any request to intervene by such a bonding company or Surety shall be treated as a motion for permissive participation under subpart (c) of this Rule. A bonding company or Surety shall have the burden of proof with respect to any claim that it did not receive notice of the Determination until after the filing of the Request for Review.
(b) The employee(s), labor union, or Joint Labor-Management Committee, or apprenticeship program (joint or unilateral) who filed the formal complaint which led the Chief DAS to issue the Determination of civil penalty or debarment shall be permitted to intervene in a pending review filed by the Affected Contractor, Subcontractor, or Responsible Officer from the Determination of civil penalty or debarment in question; provided that, intervention is sought at or before the first prehearing conference held pursuant to Rule 31 [Section 232.31] below and there is no good cause to deny the request. Thereafter, any request to intervene by such employee(s), labor union, or Joint Labor-Management Committee or apprenticeship program shall be treated as a motion for permissive participation as an interested Person under subpart (d) of this Rule.
(c) Any other Person may move to participate as an interested Person in a proceeding in which that Person claims a substantial interest in the issues or underlying controversy and in which that Person's participation is likely to assist and not hinder or protract the hearing and determination of the case by the Hearing Officer and the Administrator. Interested Persons who are permitted to participate under this Rule shallnotbe regarded as Parties to the proceeding for any purpose, but may be provided notices and the opportunity to present arguments under such terms as the Hearing Officer deems appropriate.
(d) Rights to intervene or participate as an interested Person are only in accordance with this Rule. Intervention or permissive participation under this Rule shall not expand the scope of issues under review nor shall it extend any rights or interests which have been forfeited as a result of an Affected Contractor, Subcontractor, or Responsible Officer's own failure to file a timely Request for Review. The Hearing Officer may impose conditions on an intervenor's or other interested Person's participation in the proceeding, including but not limited to those conditions specified in Government Code s11440.50(c).
(e) No Person shall be required to seek intervention in a review proceeding as a condition for pursuing any other remedy available to that Person for the enforcement of the public works apprenticeship requirements of section 1777.5 of the Labor Code.
Note: Authority cited: Section 1777.7, Labor Code. Reference: Section 1777.7, Labor Code.
s 232.09. Representation at Hearing.
(a) A Party may appear in person or through an authorized Representative, who need not be an attorney at law; however, a Party shall use the Director's Authorization For Representation By Non-Attorney form, revised 1/15/02, to authorize representation by any non-attorney who is not an owner, officer, or managing agent of that Party.
(b) Upon formal notification that a Party is being represented by a particular individual or firm, service of subsequent notices in the matter shall be made on the Representative, either in addition to or instead of the Party, unless and until such authorization is terminated or withdrawn by further written notice. Service upon an authorized Representative shall be effective for all purposes and shall control the determination of any notice period or the running of any time limit for the performance of any acts, regardless of whether or when such notice may also have been served directly on the represented Party.
(c) An authorized Representative shall be deemed to control all matters respecting the interests of the represented Party in the proceedings.
(d) Parties and their Representatives shall have a continuing duty to keep the appointed Hearing Officer and all other Parties to the proceeding informed of their current address and telephone number.
Note: Authority cited: Section 1777.7, Labor Code. Reference: Section 1777.7, Labor Code.
s 232.10. Proper Method of Service.
(a) Unless a particular method of service is specifically prescribed by statute or these Rules, service may be made by: (1) personal delivery; (2) priority or first class mailing postage prepaid through the U. S. Postal Service; (3) any other means authorized under Code of Civil Procedure section 1013; or (4) pursuant to Government Code section 11440.20(b), by facsimile or other electronic means.
(b) Service is complete at the time of personal delivery or mailing, or at the time of transmission as determined under Rule 11 [Section 232.11] below.
(c) Proof of service shall be filed with the document and may be made by: (1) affidavit or declaration of service; (2) written statement endorsed upon the document served and signed by the party making the statement; or (3) copy of letter of transmittal.
(d) Service on a Party who has appeared through an attorney or other Representative shall be made upon such attorney or Representative.
(e) In each proceeding, the Hearing Officer shall maintain an official address record which shall contain the names and addresses of all Parties and their Representatives, agents, or attorneys of record. Any change or substitution in such information must be communicated promptly in writing to the Hearing Officer. The official address record may also include the names and addresses of interested Persons who have been permitted to participate under Rule 08(d) [Section 232.08].
Note: Authority cited: Section 1777.7, Labor Code; and Section 11400.20, Government Code. Reference: Section 1777.7, Labor Code; and Section 11440.20, Government Code.
s 232.11. Filing and Service of Documents by Facsimile or Other Electronic Means.
(a) In individual cases the Hearing Officer pursuant to Government Code section 11440.20(b) may authorize the filing and service of documents by facsimile or by other electronic means, subject to reasonable restrictions on the time of transmission and the page length of any document or group of documents that may be transmitted by facsimile or other electronic means, and subject to any further requirements on the use of cover sheets or the subsequent filing and service of originals or hard copies of documents as the Hearing Officer deems appropriate. Filing and service by facsimile or other electronic means shall not be authorized under terms that substantially disadvantage any Party appearing or participating in the proceeding as a matter of right. A document transmitted by facsimile or other electronic means shall not be considered received until the next Working Day following transmission unless it is transmitted on a Working Day and the entire transmission is completed by no later than 4:00 p.m. Pacific Time.
(b) Filings and service by facsimile or other electronic means shall not be authorized or accepted as a substitute for another method of service that is required by statute or these Rules, unless the Party served has expressly waived its right to be served in the required manner.
Note: Authority cited: Section 1777.7, Labor Code; and Section 11400.20, Government Code. Reference: Section 1777.7, Labor Code; and Section 11440.20, Government Code.
s 232.12. Administrative Adjudication Bill of Rights.
(a) The provisions of the Administrative Adjudication Bill of Rights found in Article 6 of Chapter 4.5 of Title 2, Division 3, Part 1 (commencing with section 11425.10) of the Government Code shall apply to these review proceedings to the extent not inconsistent with a state or federal statute, a federal regulation, or a court decision which applies specifically to the Department. The enumeration of certain rights in these Rules may expand but shall not be construed as limiting the same or similar provision of the Administrative Adjudication Bill of Rights; nor shall the enumeration of certain rights in these Rules be construed as negating other statutory rights not stated.
(b) Ex parte communications between the appointed Hearing Officer and the Administrator shall be in accordance with Government Code section 11430.80(b).
(c) The presentation or submission of any written communication by a Party or other interested Person during the course of a review proceeding shall be governed by the requirements of Government Code s11440.60 (b) and (c).
(d) Unless otherwise indicated by express reference within the body of one of these Rules, the provisions of Chapter 5 of Title 2, Division 3, Part 1 (commencing with section 11500) of the Government Code shall not apply to these review proceedings.
Note: Authority cited: Section 1777.7, Labor Code; and Section 11400.20, Government Code. Reference: Section 1777.7, Labor Code; and Sections 11415.20, 11425.10 and 11430.80(b), Government Code.
s 232.20. Service and Contents of Determinations.
(a) A Determination of civil penalty or debarment shall be served on the contractor, subcontractor, and responsible officer, if applicable, by first class and certified mail pursuant to the requirements of Code of Civil Procedure section 1013. A copy of the notice shall also be served by certified mail on any bonding company issuing a bond that secures the performance of the job covered by the Determination and to any Surety on the bond if its identities of such companies are known or reasonably ascertainable. The identity of any Surety issuing a bond for the benefit of an Awarding body as designated obligee shall be deemed "known or reasonably ascertainable," and the Surety shall be deemed to have received the notice required under this subpart if sent to the address appearing on the face of the bond.
(b) A Determination of civil penalty or debarment shall be in writing and shall include the following information:
(1) a description of the nature of the violation and basis for the Determination; and
(2) the amount of penalties due, including a specification of amounts to be withheld from available contract payments, and any period of debarment.
(c) A Determination of civil penalty or debarment shall also include the following information:
(1) the name and address of the office of the Administrator to whom a Request for Review must be sent, as well as the name and address of the office of the Chief DAS on whom a copy of the Request for Review must be served;
(2) information on the procedures for obtaining review of the Determination;
(3) notice of the opportunity to request a settlement meeting under Rule 21 [Section 232.21] below; and
(4) the following statement which shall appear in bold or another type face that makes it stand out from the other text:
Failure by a contractor, subcontractor, or responsible officer to submit a timely Request for Review will result in a final order which shall be binding on the contractor, subcontractor, or responsible officer. Labor Code section 1777.7(c)(1).
Note: Authority cited: Section 1777.7, Labor Code; and Section 11400.20, Government Code. Reference: Section 1777.7, Labor Code; and Sections 11440.20 and 11425.50, Government Code.
s 232.21. Opportunity for Early Settlement.
(a) Any Party may request a meeting with the Chief DAS for the purpose of attempting to settle the dispute regarding the Determination.
(b) A settlement meeting may be conducted subject only to the agreement of the Parties, including agreement to any particular Hearing Officer to act as the Settlement Officer, and agreement to waive any right to disqualify the Office of the Director - Legal Unit from representing the Director or any division of the Department other than DAS in the event any part of the dispute goes to court. The settlement meeting may be held in person or by telephone.
(c) Nothing herein shall preclude the Parties from meeting or attempting to settle a dispute at any time.
(d) Neither the making or pendency of a request for a settlement meeting, nor the fact that the Parties have met or have failed or refused to meet as authorized by this Rule shall serve to extend the time for filing a Request for Review under Rule 22 [Section 232.22] below.
(e) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, such a settlement meeting shall be admissible or subject to discovery in any administrative or civil proceeding. No writing prepared for the purpose of, in the course of, or pursuant to, such a settlement meeting, other than a final settlement agreement, shall be admissible or subject to discovery in any administrative or civil proceeding. Where a separate Settlement Officer has conducted the settlement meeting, all communications by and between the parties and the Settlement Officer are completely confidential, and not to be shared by the parties or by the Settlement Officer with the Hearing Officer, other attorneys working in the Office of the Director - Legal Unit, or clients of the Office of the Director - Legal Unit.
Note: Authority cited: Section 1777.7, Labor Code; and Section 11400.20, Government Code. Reference: Section 1777.7, Labor Code; and Section 11415.60, Government Code.
s 232.22. Filing of Request for Review.
(a) Any Request for Review of a Determination of civil penalty or debarment shall be transmitted in writing to the office of the Administrator within 30 days after service of the Determination. Failure to request review within 30 days shall result in the Determination becoming final and not subject to further review under these Rules.
(b) A Request for Review shall be transmitted to the office of the Administrator at the following address:
Department of Industrial Relations Office of the Director - Legal Unit Attention: Lead Hearing Officer P.O. Box 420603 San Francisco, CA 94142-0603
(c) A Request for Review shall be deemed filed on the date of mailing, as determined by the U.S. Postal Service postmark date on the envelope or the overnight carrier's receipt in accordance with Rule 03(b) [Section 232.03(b)] above, or on the date of receipt by the designated office of the Administrator, whichever is earlier.
(d) A copy of the Request for Review must be served on the Chief DAS, at the address as designated on the Determination from which review is sought.
(e) A Request for Review either shall clearly identify the Determination from which review is sought, including the date of the Determination, or it shall include a copy of the Determination as an attachment. A Request for Review shall also set forth the basis upon which the Determination is being contested. A Request for Review shall be liberally construed in favor of its sufficiency; however, the Hearing Officer may require the Party seeking review to provide a further specification of the issues or claims being contested and a specification of the basis for contesting those matters.
Note: Authority cited: Section 1777.7, Labor Code. Reference: Section 1777.7, Labor Code.
s 232.23. Transmittal of Request for Review to Department.
Within ten (10) days followings its receipt of a Request for Review, the Chief DAS shall transmit to the Office of the Director - Legal Unit, the Request for Review and copies of the Determination of civil penalty or debarment at the following address.
Department of Industrial Relations Office of the Director - Legal Unit Attention: Lead Hearing Officer P.O. Box 420603 San Francisco, CA 94142-0603
Note: Authority cited: Section 1777.7, Labor Code. Reference: Section 1777.7, Labor Code.
s 232.24. Disclosure of Evidence.
(a) Within ten (10) days following its receipt of a Request for Review, the Chief DAS shall also notify the Affected Contractor, Subcontractor, or Responsible Officer, if applicable, of its opportunity and the procedures for reviewing evidence to be utilized by the Chief DAS at the hearing on the Request for Review.
(b) The Chief DAS shall be deemed to have provided the opportunity to review evidence required by this Rule if it (1) gives the Affected Contractor, Subcontractor, or Responsible Officer the option, at the Affected Contractor's, Subcontractor's, or Responsible Officer's own expense, to either (A) obtain copies of all such evidence through a commercial copying service or (B) inspect and copy such evidence at the office of the Chief DAS during normal business hours; or if (2) the Chief DAS at its own expense forwards copies of all such evidence to the Affected Contractor, Subcontractor, or Responsible Officer.
(c) The evidence required to be provided under this Rule shall include the identity of witnesses whose testimony the Chief DAS intends to present, either in person at the hearing or by declaration or affidavit. This provision shall not be construed as requiring the Chief DAS to prepare or provide any separate listing of witnesses whose identities are disclosed within the written materials made available under subpart (a).
(d) The Chief DAS shall make evidence available for review as specified in subparts (a) through (c) within 20 days of its receipt of the Request for Review; provided that, this deadline may be extended by written request or agreement of the Affected Contractor, Subcontractor, or Responsible Officer. The Chief DAS's failure to make evidence available for review as required by Labor Code section 1777.7(c) and this Rule, shall preclude the Chief DAS from introducing such evidence in proceedings before the Hearing Officer or the Administrator.
(e) This Rule shall not preclude the Chief DAS from relying upon or presenting any evidence first obtained after the initial disclosure of evidence under subparts (a) through (d), provided that, such evidence is promptly disclosed to the Affected Contractor, Subcontractor, or Responsible Officer. This Rule also shall not preclude the Chief DAS from presenting previously undisclosed evidence to rebut new or collateral claims raised by another Party in the proceeding.
Note: Authority cited: Section 1777.7, Labor Code. Reference: Section 1777.7, Labor Code.
s 232.25. Withdrawal of Request for Review; Reinstatement.
(a) An Affected Contractor, Subcontractor, or Responsible Officer may withdraw a Request for Review by written notification at any time before a decision is issued or by oral motion on the hearing record. The Hearing Officer may grant such withdrawal by letter, order or decision served on the Parties.
(b) For good cause, a Request for Review so dismissed may be reinstated by the Hearing Officer or the Administrator upon a showing that the withdrawal resulted from misinformation given by the Chief DAS or otherwise from fraud or coercion. A motion for reinstatement must be filed within 60 days of service of the letter, order or decision granting withdrawal of the Request for Review or, in the event of fraud which could not have been suspected or discovered with the exercise of reasonable diligence, within 60 days of discovery of such fraud. The motion shall be accompanied by a declaration containing a statement that any facts therein are based upon the personal knowledge of the declarant.
(c) Notwithstanding any application or showing made under subpart (b) of this Rule, neither the Hearing Officer nor the Administrator may reinstate any Request for Review where the underlying Determination has become final and entered as a court judgment.
Note: Authority cited: Section 1777.7, Labor Code. Reference: Section 1777.7, Labor Code.
s 232.26. Dismissal or Amendment of Determinations.
(a) Upon motion to the appointed Hearing Officer, the Chief DAS may dismiss or amend a Determination as follows:
(1) A Determination may be dismissed or amended to eliminate or reduce a charge of violation from serious and knowing to knowing, an amount of monetary penalty, or a period of debarment that is not warranted under the facts and circumstances of the case, or that has been satisfied, or to conform to an order of the Hearing Officer or the Administrator.
(2) For good cause, a Determination may be amended to revise or increase a charge from knowing to serious and knowing, an amount of monetary penalty, or a period of debarment based upon a recomputation or the discovery of new evidence subsequent to the issuance of the original Assessment or Notice.
(b) The Hearing Officer shall grant any motion to dismiss or amend a Determination downward under subparts (a)(1) absent a showing that such dismissal or amendment will result in the forfeiture of substantial substantive rights of another Party to the proceeding. The Hearing Officer may grant a motion to amend a Determination upward under subpart (a)(2) under such terms as are just, including where appropriate the extension of an additional opportunity for early settlement under Rule 21 [Section 232.21]. Unless the Hearing Officer determines otherwise, an amended Determination shall be deemed fully controverted without need for filing an additional or amended Request for Review.
(c) The Administrator may, upon the record on review of the Determination and without amendment, increase or decrease the penalty - whether civil penalty or debarment - based upon consideration of the factors listed in Labor Code section 1777.7(f).
Note: Authority cited: Section 1777.7, Labor Code. Reference: Section 1777.7, Labor Code.
s 232.27. Early Disposition of Untimely Assessment, Withholding, or Request for Review.
(a) Upon the application of any Party or upon his or her own motion, the appointed Hearing Officer may issue an Order to Show Cause why a Determination or a Request for Review should not be dismissed as untimely under the relevant statute.
(b) An Order to Show Cause issued under subpart (a) of this Rule shall be served on all Parties who have appeared or been served with any prior notice in the matter and shall provide the Parties with at least 10 days to respond in writing to the Order to Show Cause and an additional 5 days following the service of such responses to reply to any submission by any other Party. Evidence submitted in support or opposition to an Order to Show Cause shall be by affidavit or declaration under penalty of perjury. There shall be no oral hearing on an Order to Show Cause issued under this Rule unless requested by a Party or by the Hearing Officer.
(c) After the time for submitting responses and replies to the Order to Show Cause has passed or after the oral hearing, if any, the Hearing Officer may do one of the following: (1) recommend that the Administrator issue a decision setting aside the Determination or dismissing the Request for Review as untimely under the statute; (2) find the Determination or Request for Review timely and direct that the matter proceed to hearing on the merits; or (3) reserve the timeliness issue for further consideration and determination in connection with the hearing on the merits.
(d) A decision by the Administrator which sets aside a Determination or which dismisses a Request for Review as untimely shall be subject to reconsideration and to judicial review in the same manner as any other Final Order or Decision of the Administrator. A determination by the Hearing Officer that the Determination or Request for Review was timely or that the timeliness issue should be reserved for further consideration and determination in connection with the hearing on the merits shallnotbe subject to appeal or review except as part of any reconsideration or appeal from the Decision of the Administrator made after the hearing on the merits.
Note: Authority cited: Section 1777.7, Labor Code; and Section 11400.20, Government Code. Reference: Section 1777.7, Labor Code; and Section 11440.20, Government Code.
s 232.28. Finality of Determinations When No Timely Request for Review is Filed; Authority of Awarding Body to Disburse Withheld Funds.
(a) Upon the failure of an Affected Contractor, Subcontractor or Responsible Officer to file a timely Request for Review under Labor Code section 1777.7(c) and Rule 22 [Section 232.22] above, the Determination of civil penalty or debarment shall become a "final order" as to the Affected Contractor, Subcontractor, or Responsible Officer that the Chief DAS may certify and file with the superior court in accordance with Labor Code section 1777.7(c)(6).
(b) Where a Determination of civil penalty or debarment has become final as to at least one but not as to every Affected Contractor, Subcontractor, or Responsible Officer, the Awarding Body shall continue to withhold and retain the amounts required to satisfy any penalties at stake in a review proceeding initiated by any other Affected Contractor, Subcontractor, or Responsible Officer until there is a final order in that proceeding that is no longer subject to judicial review.
Note: Authority cited: Section 1777.7, Labor Code. Reference: Section 1777.7, Labor Code.
s 232.29. [Reserved].
s 232.30. Scheduling of Hearing; Continuances and Tolling.
(a) The appointed Hearing Officer shall establish the place and time of the hearing on the merits, giving due consideration to the needs of all Parties and the statutory time limits for hearing and deciding the matter. Parties are encouraged to communicate scheduling needs to the Hearing Officer and all other Parties at the earliest opportunity. It shall not be a violation of Rule 07 [Section 232.07]'s prohibition on ex parte communications for the Hearing Officer or his or her designee to communicate with Parties individually for purposes of clearing dates and times and proposing locations for the hearing. The Hearing Officer may also conduct a prehearing conference by telephone or any other expeditious means for purposes of establishing the time and place of the hearing.
(b) Once a hearing date is set, a request for a continuance that is not joined in by all other Parties or that is for more than 30 days will not be granted absent a showing of extraordinary circumstances, giving due regard to the potential prejudice to other Parties in the case and other Persons affected by the matter under review. Absent an enforceable waiver (see subpart (d) below), no continuance will be granted nor any proceeding otherwise delayed if doing so is likely to prevent the Hearing Officer from commencing the hearing on the matter within the statutory time limit.
(c) A request for a continuance that is for 30 days or less and is joined by all Parties shall be granted upon a showing of good cause. Notwithstanding subpart (b) above, a unilateral request for a continuance made by the Party who filed the Request for Review shall be granted upon a showing of good cause if the new date for commencing the hearing is no more than 120 days after the date of service of the Determination of civil penalty or debarment
(d) If a Party makes or joins in any request that would delay or otherwise extend the time for hearing or deciding a review proceeding beyond any prescribed time limit, such request shall also be deemed a waiver by that Party of that time limit.
(e) The time limits for hearing and deciding a review proceeding shall also be deemed tolled (1) when proceedings are suspended to seek judicial enforcement of a subpoena or other order to compel the attendance, testimony, or production of evidence by a necessary witness; (2) when the proceedings are stayed or enjoined by any court order; (3) between the time that a proceeding is dismissed and then ordered reinstated under Rule 25 [Section 232.25] above; (4) upon the order of a court reinstating or requiring rehearing of the merits of a proceeding; or (5) during the pendency of any other cause beyond the Administrator's direct control (including but not limited to natural disasters, temporary unavailability of a suitable hearing facility, or absence of budget authority) that prevents the Administrator or any appointed Hearing Officer from carrying out his or her responsibilities under these Rules.
Note: Authority cited: Section 1777.7, Labor Code. Reference: Section 1777.7, Labor Code.
s 232.31. Prehearing Conference.
(a) Upon the application of any Party or upon his or her own motion, the appointed Hearing Officer may conduct a prehearing conference for any purpose that may expedite or assist the preparation of the matter for hearing or the disposition of the Request for Review. The prehearing conference may be conducted by telephone or other means that is convenient to the Hearing Officer and the Parties.
(b) The Hearing Officer shall provide reasonable advance notice of any prehearing conference conducted pursuant to this Rule. The Notice shall advise the Parties of the matters which the Hearing Officer intends to cover in the prehearing conference, but the failure of the Notice to enumerate some matter shall not preclude its discussion or consideration at the conference. The Notice shall advise the Parties that failure to appear at the prehearing conference may subject the Parties to default, pursuant to Rule 46 [Section 232.46].
(c) With or without a prehearing conference, the Hearing Officer may issue such procedural Orders as are appropriate for the submission of evidence or briefs and conduct of the hearing, consistent with the substantial rights of the affected Parties.
Note: Authority cited: Section 1777.7, Labor Code. Reference: Section 1777.7, Labor Code.
s 232.32. Consolidation and Severance.
(a) The Hearing Officer may consolidate for hearing and decision any number of proceedings where the facts and circumstances are similar and consolidation will result in conservation of time and expense. Where the Hearing Officer proposes to consolidate proceedings on his or her own motion, the Parties shall be given reasonable notice and an opportunity to object before consolidation is ordered.
(b) The Hearing Officer may sever consolidated proceedings for good cause.
Note: Authority cited: Section 1777.7, Labor Code. Reference: Section 1777.7, Labor Code.
s 232.33. Prehearing Motions; Cut Off Date.
(a) Any motion made in advance of the hearing on the merits, any opposition thereto, and any further reply shall be in writing and directed to the appointed Hearing Officer. No particular format shall be required; however, the following information shall appear prominently on the first page: (1) the case name (i.e., names of the Parties); (2) any assigned case number; (3) the name of the Hearing Officer to whom the paper is being submitted; (4) the identity of the Party submitting the paper; (5) the nature of the relief sought; and (6) the scheduled date, if any, for the hearing on the merits of the Request for Review. The motion shall also include a Proof of Service, as defined in Rule 10 [Section 232.10] above, showing that copies have been served on all other Parties to the proceeding.
(b) Prehearing motions shall be served and filed no later than 20 days prior to the hearing on the merits of the Request for Review. Any opposition shall be served and filed no later than 10 days after service of the motion or at least 7 days prior to the hearing on the merits, whichever is earlier. The Hearing Officer may in his or her discretion decide the motion in writing in advance of the hearing on the merits or reserve the matter for further consideration and determination at the hearing on the merits.
(c) There shall be no right to a separate oral hearing on any prehearing motion, except in those instances in which an oral hearing has been specially requested by a Party or the Hearing Officerandin which the enforcement or forfeiture of a fundamental right is at stake. When the Hearing Officer determines that such an oral hearing is necessary or appropriate, it may be conducted by telephone or other manner that is convenient to the Parties.
(d) With the exception of timeliness challenges under Rule 27 [Section 232.27], prehearing motions which seek to dispose of a Request for Review or any related claim or defense are disfavored and ordinarily will not be considered prior to the hearing on the merits.
Note: Authority cited: Section 1777.7, Labor Code. Reference: Section 1777.7, Labor Code.
s 232.34. Evidence by Affidavit or Declaration. (continued)