19 Del. Admin. Code § 1322-7.0

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

Section 1322-7.0 - Enforcement

7.1 The authority to enforce the prevailing wage rates derives from 29 Del.C. § 6960 (b) which states: "The Department of Labor shall investigate all claims that the prevailing wage rates as provided for under this section are not being or have not been paid."

7.1.1 Duties of Contractors. Every contractor and subcontractor on a public project shall:

7.1.1.1 Post in a prominent and accessible place at the site of the work, a legible copy of the applicable prevailing wage determination issued by the Department. The notice must remain posted during the life of the contract and must be supplemented in its entirety whenever amended wage rate determinations are issued by the Department.

7.1.1.2 Pay all mechanics and laborers employed directly upon the site of the work, unconditionally and not less often than once a week and without subsequent deduction or rebate on any account, the full amounts accrued at the time of payment, computed at wage rates not less than those stated in the prevailing wage rate determination.

7.1.1.2.1 Laborers or mechanics performing work in more than one occupation shall be compensated at least the rate specified for each occupation for the time actually worked therein.

7.1.1.2.2 An employer shall not pay or permit any worker to accept wages less than the prevailing rate of wages as determined by the Department;

7.1.1.2.3 Every employer performing work on a public project shall furnish weekly payroll reports to the Department of Labor on forms provided (upon request) by the Department. Payroll reports shall be mailed or delivered by the employer to the Department within-one week from the last work day covered by the report. Failure to complete each and every section of the report (including the requirement that the form be notarized) will constitute a failure to submit sworn payroll information as required by the Department.

7.1.1.2.4 An employer shall not, at any time during the project, pay less than the prevailing rate of wages for each hour worked, regardless of the rate of pay being paid at any other time.

7.1.1.2.5 An employer shall not pay less than the prevailing rate of wages by docking pay, docking time, or deducting pay for any purpose unless provided for by law including the Wage Payment and Collection Act of the State of Delaware (19 Del.C. § 1107).

7.1.1.2.6 A person shall not, either for himself/herself or any other person, request, demand, or receive, either before or after an employee is engaged, that such employee pay back, return, donate, contribute, or give any part or all of said employee's wages, salary, or thing of value, to any person, upon the statement, representation, or understanding that failure to comply with such request or demand will prevent such employee from procuring or retaining employment. This paragraph does not apply to any agent or representative of a duly constituted labor organization acting in the collection of dues or assessments of such organization as permitted by law.

7.1.1.2.7 A person shall not, directly or indirectly, aid, request, or authorize any person to sign a release for any claim of wages with the intent to avoid payment of the prevailing wage rates.

7.1.1.3 Keep the following records for a period of three years:

7.1.1.3.1 The name and address of each employee;

7.1.1.3.2 The social security number of each employee;

7.1.1.3.3 A daily log for each individual employed upon the site of construction. The log must list (in general terms) the tasks performed by each employee and the amount of time spent performing each task. (Examples, "hung drywall', "wired lighting fixtures", etc.);

7.1.1.3.4 Each employee's basic hourly rate of pay (If an employee performs public project work in more than one trade, the employer's record must reflect the hourly rate paid for each type of work performed; If an employee performs both prevailing wage work and non-prevailing wage work, the records must reflect the rates paid for each.)

7.1.1.3.5 The number of hours worked in each occupation on the project in the applicable pay schedule, the number of hours worked in each day, and the total number of hours worked each week;

7.1.1.3.6 The amount of wages paid each employee;

7.1.1.3.7 The amount of wages paid each employee as fringe benefit payments;

7.1.1.3.8 The amount of any deductions withheld from each employee's wages; and

7.1.1.3.9 An accurate description of the nature of the deductions withheld from each employee's wages. (Fringe benefit deductions must be supported by a written fringe benefit policy as required by the Wage Payment and Collection Act.)

7.1.2 Investigation. A complaint may be filed with the Department by any employee upon a public project or any interested party. The complaint shall be in writing. Upon receipt of a complaint or upon its own motion the Department shall initiate an investigation.

7.1.2.1 The Department shall notify the employer by certified and First Class mail that a complaint has been filed and/or that an investigation has been initiated. The Department may request (or subpoena, if necessary) records, documents, or testimony necessary to make a determination as to the validity of the complaint or the employer's compliance with the law.

7.1.2.2 If the Department of Labor is unable to obtain voluntary compliance, the Department shall notify the employer by certified and First Class mail that it has made a final determination that the employer is in violation and that the employer has the right to appeal the final determination to the Secretary (the "Final Notice"). All appeals of a Final Notice to the Secretary shall be in writing and must be received by the Secretary within fifteen (15) days from the receipt of the Final Notice. For purposes of determining "receipt," the failure to accept certified mail, combined with the lack of return of First Class mail, shall be deemed to be sufficient notice. Receipt shall be construed upon the date at which the certified mail was rejected. Failure to make a return of service shall not affect the validity of service. The Secretary shall acknowledge receipt of appeals within twenty (20) days and propose a schedule to determine the appeal. The Secretary may designate a neutral third party to preside over an appeal. Final Determinations shall be reviewable for an abuse of discretion or clear error of law.

7.1.2.3 Consistent with the prevailing wage law, the Department may direct the contracting agency and/or the prime contractor to withhold payments to the employer (in an amount equal to the prevailing wage deficiencies, as determined by the Department) which are to be remitted to the Department for distribution upon resolution of the matter. The determination of when a matter shall be resolved shall be at the sole discretion of the Department. In addition, the Secretary may terminate all rights of the employer to proceed with the work under the contract and the employer shall be responsible for all damages resulting therefrom.

7.1.2.4 Employers may request, in writing, expedited treatment of an investigation and/or an appeal to the Office of the Secretary. In such cases, the employers shall state with particularity the reason for the request and provide all information requested by the Department. The Department shall respond to requests for expedition within seven (7) days. If expedited relief is granted, the Department shall make every effort to expedite the investigation and/or appeal to the Secretary or his/her designee. The Department shall have sole discretion to grant or deny requests for expedition and such decisions are not reviewable.

7.1.3 Hearings. A hearing shall be held in cases involving the termination of rights to proceed with the work under the public construction contract. A hearing shall also be held in cases involving classification disputes. However, any such party's appeal request must be received by the Department of Labor within fifteen (15) days of said party's receipt of the final decision of the Office of Labor Law Enforcement. For purposes of determining "receipt," the failure to accept certified mail, combined with the lack of return of First Class mail, shall be deemed to be sufficient notice. Receipt shall be construed upon the date at which the certified mail was rejected. Failure to make a return of service shall not affect the validity of service. A hearing otherwise required by this subsection may be voluntarily waived at the request of the employer.

7.1.4 Hearing Practices and Procedures.

7.1.4.1 Scope of Rules. These rules shall govern the conduct of prevailing wage hearings held by the Department of Labor.

7.1.4.2 Initiation of Hearing. The Secretary of Labor shall initiate a hearing by notifying the contractor or subcontractor by registered mail that said contractor or subcontractor is alleged to have violated the prevailing wage law. The notice shall give 20 days prior notice from receipt to all parties as follows:

7.1.4.2.1 The notice shall describe the subject matter of the proceedings;

7.1.4.2.2 The notice shall give the date, time and place the hearing will be held;

7.1.4.2.3 The notice shall cite the law or regulation giving the Department authority to act;

7.1.4.2.4 The notice shall inform the party of his/her right to present evidence, to be represented by counsel, and to appear personally or by other representative; and

7.1.4.2.5 The notice shall inform the parties that the Department will reach its decision based upon the evidence received.

For purposes of determining "receipt," the failure to accept certified mail, or the lack of return of First Class mail, shall be deemed to be sufficient notice. Receipt shall be construed upon the date at which the certified mail was rejected. Failure to make a return of service shall not affect the validity of service.

7.1.4.3 Conduct of Hearing.

7.1.4.3.1 The hearing shall be conducted-by the Secretary of Labor or by a hearing officer designated for that purpose by the Secretary.

7.1.4.3.2 In connection with such hearing, the Secretary or hearing officer shall:

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

7.1.4.3.2.2 Administer oaths to witnesses;

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

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

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

7.1.4.3.3 The rules of evidence applied in civil cases by the courts of the State of Delaware shall not be strictly followed. The Secretary or hearing officer may allow evidence not admissible under these rules of evidence where, in his or her judgment, application of the exclusionary rule would result in unnecessary hardship and the evidence offered is of a kind commonly relied upon by reasonably prudent persons in the conduct of their affairs. Hearsay may be admissible in administrative hearings, but may not constitute the sole basis for the Secretary or hearing officer's determination upon the factual issue addressed by the hearsay evidence.

7.1.4.3.3.1 All hearings shall be conducted in a fair, impartial, expeditious and orderly manner.

7.1.4.3.4 The burden of proof shall be-upon the Department. (If the records maintained by the employer do not provide sufficient information to determine the exact amount of wages owed, the Department may make a determination based on available evidence.)

7.1.4.3.5 A record from which a verbatim transcript can be prepared shall be made of all hearings in contested cases. Transcripts shall be made at the request and expense of the requesting party.

7.1.4.3.6 A party's failure to appear at a hearing that has been duly noticed shall not mandate the continuance of the hearing. At the discretion of the Secretary or hearing officer, the hearing shall proceed in the party's absence, which shall be noted on the record.

7.1.4.3.7 If a party, or counsel to a party, engages in conduct in violation of an order of the independent reviewer, or other disruptive conduct during an oral hearing, the independent reviewer may impose non-monetary sanctions therefor, including the issuance of an order:

(i) excluding the party and/or his or her counsel from any further participation in the hearing;

(ii) striking briefs from the record;

(iii) providing that certain facts shall be taken to be established for purposes of the appeal; or

(iv) providing for such other relief as is just and equitable under the circumstances.

7.1.4.4 Proposed Orders.

7.1.4.4.1 Whenever a hearing officer presides over a hearing (s)he shall prepare a proposed order for the consideration of the Secretary which shall include:

7.1.4.4.1.1 A brief summary of the evidence and recommended findings of fact based upon the evidence;

7.1.4.4.1.2 Recommended conclusions of law; and

7.1.4.4.1.3 Recommended decision.

7.1.4.4.2 When the proposed order is submitted to the Secretary, a copy shall be delivered to each of the other parties who shall have 10 days to submit in writing to the Secretary exceptions, comments and arguments respecting the proposed order.

7.1.4.5 Record. With respect to each case, all notices, correspondence between the agencies and the parties, all exhibits, documents in testimony admitted into evidence and all recommended orders, summary of evidence and findings of all interlocutory and final orders of the agency shall be included in the agency's record of the case and shall be retained by the agency for three (3) years.

7.1.4.6 Decision; Final Order.

7.1.4.6.1 The Secretary shall make his/her decision based upon the entire record of the case and upon summaries and recommendations of the hearing officer.

7.1.4.6.2 Every case decision of the Secretary shall be incorporated in a final order which shall include, where appropriate:

7.1.4.6.2.1 A brief summary of the evidence;

7.1.4.6.2.2 Findings of fact based upon the evidence;

7.1.4.6.2.3 Conclusions of law;

7.1.4.6.2.4 Any other conclusion required by the law or the Department of Labor;

7.1.4.6.2.5 A concise statement of the Department of Labor's determination or action on the case.

7.1.4.6.3 Every final order shall be authenticated by the signature of the Secretary.

7.1.4.6.4 Every final order shall immediately be mailed or delivered to each party, to the contracting agency, and each other person requesting it.

7.1.4.6.5 Every final order may be amended or modified by the same procedure used for the initial adoption of the order.

7.1.4.7 Informal Disposition. Informal disposition may be made of any matter set for hearing by stipulation, agreed settlement, consent order, or default.

19 Del. Admin. Code § 1322-7.0

1 DE Reg. 519 (11/01/97)
22 DE Reg. 403 (11/1/2018) (Final)