UNITED STATES
DEPARTMENT OF LABOR

USDOL/OALJ Reporter

91fls01a.htm

Date:  April 26, 1995

Case No.  91-FLS-1

In the Matter of

     Petition for Review of Special Minimum
     Wage Rate pursuant to Section 14(c)(5)(A)
     of the Fair Labor Standards Act by:

RICHARD MICHAEL DEPP
          
          Petitioner.


APPEARANCES:

Richard Michael Depp, pro se

William A. Nolan, Esq.
     For the Respondent, Vision Center of Central Ohio, Inc.

Benjamin T. Chinni, Esq.
     For the Department of Labor

BEFORE:   DANIEL J. ROKETENETZ
          Administrative Law Judge

                                    
                    DECISION AND ORDER ON REMAND

     This proceeding arises from a request by the Petitioner,
Richard Michael Depp (hereinafter referred to as "Petitioner"), for
a review of a special minimum wage rate pursuant to Section
14(c)(5)(A) of the Fair Labor Standards Act of 1938, as amended, 29
U.S.C. § 201, et seq. (hereinafter referred to as "the
Act") and the implementing regulations thereunder at 29 C.F.R. Part
525.  The Secretary of Labor issued Exceptions to Decision and
Order of the undersigned Administrative Law Judge on July 10, 1992,
and remanded the case for computation of back wages owed the
Petitioner on his being entitled to receive the minimum wage.


[PAGE 2]

[PAGE 2]
Issue Presented

The sole issue which remains for resolution is the computation of
back wages owed to the Petitioner from March 13, 1989 until
November 23, 1992.


     Based upon a thorough analysis of the entire record in this
case, with due consideration accorded to the arguments of the
parties, applicable statutory provisions, regulations and relevant
case law, I hereby make the following:

                            FINDINGS OF FACT

Procedural History

     On March 13, 1991, Petitioner filed a petition with the
Wage and Hour Division, United States Department of Labor for a
review of a special minimum wage rate pursuant to 29 U.S.C. §
214(c)(5) of the Act and implementing regulations thereunder at 29
C.F.R. § 525.22.  On April 2, 1991, the case was referred to
the Office of Administrative Law Judges by the Acting Administra-
tor, Wage and Hour Division for a formal hearing, which was held
before the undersigned Administrative Law Judge on May 9, 1991 in
Columbus, Ohio.  All parties were afforded full opportunity to
present evidence as provided in 29 C.F.R. Part 18.

     On May 29, 1992, the undersigned issued a Decision and Order
in which it was found that the Respondent, Vision Center of Central
Ohio, Inc., complied with the requirements of Section 14(c) of the
Act in setting the sub-minimum wage for the Petitioner.  On June
12, 1992, the Acting Administrator filed a request for review of
the undersigned's determination regarding the special minimum wage
rate.  Subsequently, on July 10, 1992, the Secretary of Labor
reversed the undersigned's finding that the sub-minimum wage paid
to the Petitioner by the Respondent was appropriate under Section
14(c) of the Act.  Consequently, the Secretary remanded the case to
the undersigned for computation back wages owed the Petitioner,
retroactive to March 13, 1989, two years prior to the Petitioner's
letter seeking review of the sub-minimum wage.  Proceedings were
automatically stayed pending resolution of Respondent's appeal of
the Secretary's Exceptions to Decision and Order to the United
States District Court for the Southern District of Ohio on August
7, 1992.  The District Court dismissed the Respondent's complaint,
without prejudice, on November 23, 1992.


[PAGE 3]
                         CONCLUSIONS OF LAW

     The sole issue in this case is the computation of back wages
for the Petitioner.  The Secretary declared that back wages shall
be paid to the Petitioner from March 13, 1989, two years prior to
the Petitioner's letter seeking review of the sub-minimum wage.  In
accordance with my Order on Remand of July, 30, 1992, the Respon-
dent calculated the back wages owed to the Petitioner from March
13, 1989 through March, 1993.  Per my instructions, the back wages
calculated and assigned to the Petitioner considered only those
days and/or periods on which the Petitioner was assigned to the
Kal-Kan project wherein he earned less than the applicable minimum
wage.   

     The Administrator objected to the amount of backpay calculated
by the Respondent in that such backpay only considered Kal-Kan
assignments and not all work performed by the Petitioner for the
Respondent during the same period.  In a Motion for Reconsideration
dated August 4, 1992, the Administrator contended that the calcula-
tion of backpay must include all work performed by the Petitioner
for the Respondent for which he was paid a sub-minimum wage.   

     In my Order[1]  of August 11, 1992, I stated that 

     [t]here is no doubt that in the context of this litiga-
     tion the controversy between the parties related to the
     Kal-Kan project.  To grant the Administrator's request
     would unnecessarily broaden the scope of the inquiry and
     result in an ipso facto determination that every
     wage rate established by [the Respondent] was violative
     of the statute.  That is a finding I am not prepared to
     make based on the record in this case.  To do so would be
     a clear denial of fundamental due process.

Nonetheless, the Administrator again filed a Motion for Recon-
sideration with supporting memorandum on March 13, 1993, once again
arguing that the Petitioner's back wages must include all work
performed by the Petitioner during the period and not solely work
associated with the Kal-Kan project.  After careful review of the
Administrator's memorandum of law, I adhere to my original
conclusions for the reasons stated above.  The Petitioner's backpay
will be commuted considering the Kal-Kan project only.   No
evidence was produced which indicated that this case concerns
anything but the Respondent's sub-minimum wages paid to the
Petitioner under the Kal-Kan project.

     Respondent has produced evidence[2]  that the backpay owed to
the Petitioner, i.e., the difference between his actual
wages and the 
[PAGE 4]
minimum wage rate in place at the time, from March 13, 1989 through
arch, 1993.  The applicable statutory minimum wage rates for the
periods at issue are as follows:


     March 1, 1989 through March 31, 1990         $3.35
     April 1, 1990 through March 31, 1991         $3.80
     April 1, 1991 through March 31, 1993         $4.25

Because the Secretary's Order did not become enforceable until the
District Court's dismissal of the Respondent's complaint, dated
November 23, 1992, wherein he appealed the Secretary's Decision,
the Respondent continued to pay the Complainant a sub-minimum wage
up to that point.  On the date of the dismissal, the Secretary's
Order took effect.  Therefore, the backwages due the Complainant
will be commuted using March 13, 1989 as the starting point, as
instructed by the Secretary, and November 23, 1992 as the ending
point for the reasons discussed above.  Thus, using the gross wage
records supplied by the Respondent in correlation with the
applicable minimum wage rates, I find that the backpay due the
Petitioner totals $2,047.50.   

     In conclusion, I find the time records and gross wage records
provided by the Respondent to be complete for the appropriate
periods and the above amount to be a valid computation of the
backpay owed to the Petitioner under the terms of the Secretary's
Order.  Therefore:
     
ORDER

     IT IS ORDERED that the Respondent pay the Petitioner an
amount in the sum of $2,047.50 to compensate the Petitioner for
back wages  corresponding to the sub-minimum wages paid to the
Petitioner by the Respondent in violation of the Act during the
period from March 13, 1989 through November 23, 1992 while working
on the Kal-Kan project.



                                        ___________________________
                                        DANIEL J. ROKETENETZ
                                        Administrative Law Judge



                        NOTICE OF APPEAL RIGHTS

     Pursuant to 29 C.F.R. § 580.13, any party dissatis-
fied with this Decision and Order on Remand may appeal it to the
Secretary of Labor within 30 days of the date of this Decision, by
filing notice of appeal with the Secretary of Labor, United States
Department of Labor, Washington, D.C. 20210.  A copy of the
notice of appeal must be served on all parties to this Decision and
Order and on the Chief Administrative Law Judge, United States
Department of Labor, 800 K Street, N.W., Suite 400, Washington,
D.C. 2001-8002.  If no timely appeal is made, this Decision and
Order shall be deemed the final agency action.

[ENDNOTES]

[1] 
  Order Denying in Part and Granting in Part Administrator's
Request for Modification, 91-FLS-1 (August 11, 1992).

[2]   The Respondent produced a revised calculation of back wages
owed to the Petitioner under the terms of the Secretary's Excep-
tions and Order.  These figures were used in calculating the award
in the above Decision and Order.  Figures submitted by the Admini-
strator included wages for work performed by the Petitioner in
additional to the Kal-Kan project.  For reasons addressed above,
these figures were not used in the calculation of the Petitioner's
backpay.