Division of
Labor Standards Enforcement. The Division of Labor Standards Enforcement
(hereinafter "DLSE") may investigate any alleged violation of the provisions of
chapter 1, part 7 of the California Labor Code for purposes of enforcing Labor
Code section
.
Investigations pursuant to section 1777.1 are for the purpose of determining a
Respondent's willful violation, or violation with the intent to defraud, of the
provisions of chapter 1, part 7 of the California Labor Code, with the
exception of section 1777.5.
(2) In the event an investigation of any
Respondent reveals a violation of Labor Code section
1777.1, DLSE
shall notify the awarding body in writing and shall serve upon the Respondent a
Notice of Hearing together with a Statement of Alleged Violations, which shall
specifically set forth DLSE's allegations against the Respondent.
(A) Service of both the Notice of Hearing and
Statement of Alleged Violations shall be complete when mailed, by first class
postage, to the last address of record for the Respondent listed with the State
Contractors License Board or, in the event the Respondent is not licensed by
the State Contractors License Board, the last known address of the Respondent
available to the awarding body or, in the case of a subcontractor, the last
known address available to the general contractor with whom the subcontractor
contracted in the performance of the public works project under investigation.
In the event there is neither an address of record with the State Contractors
License Board or the awarding body or general contractor, the Notice of Hearing
and Statement of Alleged Violations shall be served pursuant to the provisions
of the Code of Civil Procedure, sections
415.10
-
415.50.
concerning the service of civil summons.
(B) The Notice of Hearing shall list the
date, time and place of the hearing which shall not be scheduled sooner than
forty-five days after the date of the mailing of the Notice of Hearing and
Statement of Alleged Violations.
(C) The Respondent shall have the opportunity
to review and copy such records from the investigative file of DLSE which are
not subject to either attorney-client or work product privileges. The
Respondent shall be entitled to a reasonable number of subpoenas but shall be
liable for any costs of service of the subpoenas, or any other witness or
mileage fees incurred.
Mileage and Witness fees shall be set as specified in
Government Code section
68093. In
the exercise of his or her discretion, the Hearing Officer may limit the number
of witnesses subpoenaed either for the purpose of corroboration or for
establishing a single material fact in issue, or where the Respondent has not
furnished satisfactory evidence that the witness will be able to give necessary
and competent testimony material to the issues at the hearing.
(D) In presiding over a hearing conducted
pursuant to section 1777.1(c), the Hearing Officer shall control the order of
presentation of evidence, and shall direct and rule on matters concerning the
conduct of the hearing and of those persons appearing. The hearing shall be
conducted in an informal setting preserving the rights of the Respondent. The
formal rules of evidence shall not apply and any relevant evidence may be
admitted if it is the sort of evidence on which responsible persons are
accustomed to rely in the conduct of serious affairs, regardless of the
existence of any common law or statutory rule which might make improper the
admission of such evidence over objection in civil actions. However, no
determination shall be made based solely upon any evidence which would not be
admissible, over objection, in a court of law in this state.
(E) The hearing shall be phonographically
recorded. The Respondent may request a copy of the recording, and shall bear
all costs incidental to the preparation of same. The Respondent may arrange to
have the hearing reported by a certified court reporter and shall bear all cost
incidental thereto. If the record of the hearing is transcribed by the
Respondent, a copy thereof shall be provided to the Labor Commissioner free of
any cost within five (5) days of such transcription.
(F) Oral evidence at the hearing shall be
taken only upon oath or affirmation. The Respondent shall have the right to
call and examine witnesses, to introduce exhibits and to rebut the evidence
against him or her.
(G) Any
Respondent to a proceeding hereunder may, but need not, be represented by legal
counsel during the entire course of the investigation, including the
hearing.
(H) Continuances of
hearings scheduled pursuant to Labor Code section
1777.1(c)
ordinarily will not be granted. The Hearing Officer, in the exercise of his or
her sound discretion, may grant a continuance of the hearing only upon a
showing of extraordinary circumstances and good cause.
(I) At the conclusion of the hearing the
Hearing Officer may take the matter under submission or allow the introduction
of post hearing briefs. The Hearing Officer shall prepare a Findings of Fact
and Conclusions and a proposed Determination which shall contain the
recommended penalty, if applicable. The Labor Commissioner or his designee
shall have the right to modify, change or adopt the proposed Findings of Fact
and Conclusions, the proposed Determination and any recommended penalty. No
Determination or penalty shall be final until adopted by the State Labor
Commissioner.
(J) The Determination
of the Labor Commissioner after the hearing shall be served on the Respondent
as provided in subdivision (A), above.
(K) In the event that the Determination of
the Labor Commissioner results in an order to debar the Respondent, DLSE shall
notify through the Division of Labor Statistics and Research all awarding
bodies of such Determination immediately upon service of the Determination on
the Respondent. In addition, DLSE shall maintain a record of each and every
debarment under the provisions of Labor Code section
1777.1 for a
period of 5 years from the date of the debarment, and shall list the name and
last known address of the debarred contractor or subcontractor, the date of the
debarment and the term of the debarment, and shall make that information
available to the public, upon written request, which encloses a self-addressed
and stamped envelope.