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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsSeptember 2017

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19 DE Admin. Code 1326
Pursuant to its authority under 29 Del.C. §10111(1), 19 Del.C. §105(a)(8) and 19 Del.C. §3503(f) the State of Delaware, Department of Labor's Division of Industrial Affairs (herein "the Division") proposed to amend its regulations. The Division's purpose in proposing these amendments was to provide additional due process to entities found by the Division to be in violation of the Workplace Fraud Act by making changes to the conduct of those hearings themselves. Minor amendments and changes were also inserted regarding other portions of the regulations.
Notice of a public comment period of thirty (30) days on the Division's proposed regulations was published in the Delaware Register of Regulations for July 1, 2017 as well as in two Delaware newspapers of general circulation in accordance with 29 Del.C. §10115. This is the Division's Decision and Order adopting the proposed regulations.
AND NOW this 1st day of September, 2017, it is hereby ordered that:
3. The effective date of this Order is ten days from the date of its publication in the Delaware Register of Regulations in accordance with 29 Del.C. §10118(e); and
IT IS SO ORDERED.
1.2.1 Questions may be addressed to "Office of Labor Law Enforcement - Administrator" at 225 Corporate Boulevard, Suite 104, Newark, DE 19702 4425 North Market Street, Wilmington Delaware 19802. The office is open daily from 8:00 a.m. to 4:30 p.m. except Saturdays, Sundays, and Legal Holidays.
1.3.1 The terms "Construction services," "Debarment," "Department," "Employee," "Employer," "Exempt person," "Independent contractor," "Knowingly," "Public body," "Secretary," "Secretary of Labor," Stop work order," "Violate," and "attempts to violate," when used in this regulation, shall have the meanings set forth in 19 Delaware Code, §3512 the Workplace Fraud Act.
"Administrator" means the Office of Labor Law Enforcement Administrator or his designee.
"Corporate officer" or "officer of a corporation" means any person who fills an office provided for in the corporate charter or articles of incorporation. As to persons engaged in the construction industry, the term "officer of a corporation," includes a member owning at least 10 percent of a limited liability company.
"Day" means calendar day unless otherwise specified.
"Party" means any employee, employer or the Department of Labor.
1.4.1 An attorney admitted to practice before the State of Delaware Supreme Court may appear on behalf of a party by providing written notice of appearance. To constitute an appearance, a form, letter, or document shall contain the names of the parties, the department's Department’s docket number if known, the name of the party that the attorney represents, and the attorney's address, telephone number, facsimile number, and e-mail address.
1.4.3 An attorney may withdraw his appearance by providing written notice of withdrawal to the department Department, certifying that a copy of the notice of withdrawal was mailed to all parties.
1.5.1 The parties shall promptly notify the department Department of any change in address, telephone number, contact information, or other material change in business status while the charge is pending.
1.6.1 These regulations shall be liberally construed by the administrator to permit the department Department to discharge its statutory duties under 19 Delaware Code, Ch. 35 the Workplace Fraud Act.
1.7.1 In any circumstance that arises not governed by these regulations, the administrator shall exercise his discretion in order to permit the department Department to discharge its statutory duties under 19 Delaware Code, Ch. 35 the Workplace Fraud Act while ensuring procedural due process to employers and other parties.
1.9.1 The administrator may rescind, amend or expand these regulations from time to time as necessary to comply with the purpose of the Workplace Fraud Act, 19 Del.C. Ch. 35, and such new regulations shall be submitted to the Registrar's office in accordance with the provisions of 29 Del.C. §10161(b).
1.10 Examples of Workplace Fraud. Pursuant to 19 Del.C. §3503(f), the following examples are provided to demonstrate violations of the Workplace Fraud Act. These examples are by no means exhaustive.
A. John Smith has an oral agreement with ABC Building Company (ABC) to do carpentry work on houses in a development designated by ABC. John Smith supplies his own hand tools and has his own business license. ABC supplies the material for each job. He has to do the work himself and he works on a full time basis for the company. For some work he is paid on a piecework basis and for some work he is paid on an hourly basis. He does not have assistants, does not have an office, and does not advertise in newspapers or otherwise hold himself out to the public as being in the carpentry business. ABC can fire him any time before he finishes a job without contractual liability. John Smith is an employee of ABC. Violation 3503(c).
2.1.1 An action may be commenced by the filing of a complaint with the department’s Department’s Office of Labor Law Enforcement.
2.2.1 An employee or the department Department on its own may file a complaint alleging a violation of the Workplace Fraud Act.
2.3.2 The department Department shall assist the employee in the completion of the complaint where necessary.
2.3.3 The complaint shall indicate that it is filed with the department Department, and shall set forth the following:
3.1.1 The department Department shall promptly initiate an investigation into alleged violations when:
3.1.1.1 The department Department received a complaint; or
3.1.1.2 The department Department, on its own motion, determines to initiate an investigation.
3.1.2 The department Department shall complete its investigation as promptly as possible.
3.2.1 All investigatory powers granted by 19 Del.C. §3504 shall be available to the department Department. In its discretion, the department Department may conduct investigations using, among other things, written requests for information, investigatory conferences, subpoenas, on-site visits, interviews, and depositions as provided by these regulations.
3.2.2 In connection with an investigation, the department Department may require the submission of information relating to:
3.3.1 The department Department may serve requests for information to assist the department Department in its investigation. Unless otherwise specified in a request for information, the response shall be due to the department Department within 15 days from the date of the request.
3.4.1 The department Department may conduct on-site visits to assist in the investigatory process for the purpose of gathering evidence, interviewing witnesses, observing a employer's place of business or work site, and reviewing documents.
3.4.2 The department Department is not required to provide the employer with any notice prior to its on-site visit.
3.5.1 The administrator may issue a subpoena as he deems necessary to assist the investigatory process. The administrator shall issue a subpoena in the name of the department Department, and the subpoena shall direct the person designated to personally appear and bring any books, records, documents and any other evidence that relates to any violation under investigation, or, in lieu of personal appearance, to produce any books, records, documents and any other evidence which relates to any violation under investigation.
3.6.1 The department Department may take depositions of witnesses under oath as part of any investigation when, in the discretion of the administrator, such depositions will aid the investigatory process.
3.7.1 If any person fails to comply with a subpoena issued by the department Department, he shall be subject to the appropriate enforcement provisions of 19 Delaware Code, §3505 the Workplace Fraud Act.
4.1 The administrator or hearing officer may in his discretion administratively dismiss a complaint for reasons including but not limited to the following:
4.1.3 Relief is precluded by the respondent's bankruptcy or other special circumstances as determined by the administrator or hearing officer;
4.2 Prior to administratively dismissing a complaint, the administrator or hearing officer shall notify the employee of the reason for the proposed dismissal and shall offer the employee the opportunity to respond.
4.2.1 The administrator or hearing officer shall make his final determination, considering all responses received within 15 days of the date of notice to the employee.
5.1.3 If the administrator determines after completion of an investigation that no violation(s) of the provisions of 19 Del.C. Ch. 35, have occurred the administrator will issue a no violation determination.
65.0 Enforceability of settlement agreements.
65.1 A settlement agreement reached during an investigation shall be set forth in writing and signed by the parties.
65.2 Allegations of breach of a settlement agreement shall be brought to the attention of the administrator or hearing officer, depending upon which is responsible for enforcing settlement agreements in the matter at the time of the alleged breach. The administrator or hearing officer shall review and investigate the allegations of breach of a settlement agreement to determine whether a breach has occurred.
65.3 The administrator or hearing officer shall issue written findings to the parties with regard to the allegation of breach of a settlement agreement.
65.4 The administrator or hearing officer in his discretion will determine whether to forward allegations of breach of the settlement agreement to the Attorney General for review.
76.0 Access to Department's Investigatory Files
76.1 Confidentiality of department's Department’s investigatory files.
76.1.1 The department's Department’s investigatory records are confidential and exempt from public access under 29 Del.C. Ch. 100 except to the extent required by subsections 3.9.5 and 3.9.8 of this regulation.
76.2 Discovery of department’s Department’s investigatory files by non-parties.
76.2.1 Non-parties to an investigation shall not have access to the material in the department’s Department’s investigatory file(s).
76.3 Copying Costs.
76.3.1 The department’s Department’s fee for copying documents requested under this section shall be the same fee as is applicable to requests granted pursuant to 29 Del.C. Ch. 100. The administrator or hearing officer may waive or modify this fee in the case of an indigent party or in other extraordinary situations for good cause.
87.0 Retention of Investigatory Files
8.1 The department Department shall retain investigatory files for three years after the end of the administrative process.
Last Updated: December 31 1969 19:00:00.
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