§ 16801. Investigations: Duties, Responsibilities and Rights of the Parties.

(a) 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 1777.1. 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.

(1) Where a preliminary investigation reveals that there is insufficient evidence to continue the investigation, DLSE may close the investigation and shall notify the Respondent and awarding body in writing.

(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.

(b) Awarding Bodies. Any awarding body which has awarded or let a contract or purchase order to be paid for in whole or in part from public funds calling for the construction, alteration, demolition, repair, maintenance, or improvement of any structure, building, road, property, or other improvement of any kind (including the laying of carpet and the hauling of refuse from a public works site to an outside disposal location with respect to contracts involving any state agency, including the California State University and University of California) shall, in accordance with Labor Code section 1776(g), inform prime contractors of the requirements of Labor Code section 1776, and any other requirements imposed by law, in order to assist DLSE with an investigation pursuant to Labor Code 1777.1. The awarding body shall have the right to review the records from the investigative file of DLSE which are not covered by attorney- client or work product privileges, and which are not being utilized in the ongoing investigation of a criminal offense.

(c) Contractors and Subcontractors. All contractors and subcontractors, including Respondents, who have contracted to perform services on a public works project shall comply with Labor Code 1776, and any other requirements imposed by law, in order to assist DLSE with an investigation pursuant to Labor Code section 1777.1.

HISTORY

1. New section filed 4-5-90 as an emergency; operative 4-5-90 (Register 90, No. 14). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 8-3-90.

2. New section filed 9-4-90 as an emergency readoption effective 9-4-90 (Register 90, No. 42). A Certificate of Compliance must be transmitted to OAL by 1-2-91 or emergency language will be repealed on the following day.

3. Repealed on January 3, 1991 by operation of Government Code section 11346.1(g) (Register 91, No. 12).

4. New section filed 2-13-91; operative 2-13-91 (Register 91, No. 12).

Note

Note: Authority cited: Section 1777.1(e), Labor Code. Reference: Section 1777.1, and Section 92, Labor Code.