Section 25-8-59

Penalties; notice of violation and opportunity to show cause; hearing.

(a) Any employer who violates this chapter, or who fails or refuses to obey within a reasonable time any lawful order or direction given by the state officials charged with the enforcement of this chapter, and any parent, guardian, or custodian who suffers or permits a person under his or her care or control who is under 19 years of age to work in violation of this chapter, shall be subject to civil penalties in addition to other penalties provided in this chapter.

(b) The department may impose a civil penalty of three hundred dollars ($300) upon the following determination: An employer has violated a statutory provision of Section 25-8-35(17), 25-8-36, 25-8-37, 25-8-38, 25-8-39, 25-8-40, 25-8-41, 25-8-44(a), 25-8-44(b), 25-8-45, 25-8-54, 25-8-57, 25-8-60, or 25-8-61.

(c) The department may impose a civil penalty of one thousand dollars ($1,000) to five thousand dollars ($5,000) upon the following determination: An employer has violated a statutory provision of Section 25-8-33, 25-8-35(1)-(16), inclusive, 25-8-43(a), or 25-8-44(d).

(d) In determining the number of violations committed by an employer, the department may assess a separate civil penalty for each individual employee affected by the employer's violation.

(e) In addition, the department may assess more than one civil penalty against an employer with respect to the same adversely affected employee if the employer has violated more than one statutory provision in Act 2009-565.

(f) The employer shall be notified of a civil penalty assessment by the Notice of Violation and Opportunity to Show Cause which shall be sent to the employer.

(g) The Notice of Violation and Opportunity to Show Cause shall provide all of the following:

(1) The total civil penalty assessed.

(2) The right of the employer to request in writing a hearing to show cause why the civil penalty should not be assessed.

(3) An advisement that no hearing shall be granted unless a written request for a hearing is received by the department within 30 days from the date of issue of the notice.

(4) The right of the employer to waive the right to request a hearing and to respond in writing to the notice within 30 days of the issue date of the notice.

(h) Any employer who seeks to contest a civil penalty assessment shall file, within 30 days from the date the Notice of Violation and Opportunity to Show Cause was issued, a written request for an opportunity to be heard which shall clearly state the reasons for such request, including facts to demonstrate that no violation has occurred.

(i) If the secretary or his or her designee determines that the employer has stated adequate facts or legal grounds to warrant a hearing, the secretary or his or her designee shall provide written notice of the hearing to show cause why a civil penalty should not be assessed and shall mail written notice to the employer of the date, time, and place of the hearing. Such determination shall be within the discretion of the secretary or his or her designee. The notice shall inform the employer of its rights in the hearing including the following:

(1) The right to be represented by any person, including an attorney.

(2) The right to present documentary evidence and a written argument in support of the employer's position.

(j) A request for postponement of a hearing so scheduled shall only be granted where the rights of an employer would be substantially prejudiced by the denial of the request or in a medical emergency. Only the secretary or his or her designee has discretion to grant such requests.

(k) Following a hearing or after the employer has waived the right to request a hearing, the secretary or his or her designee may uphold or modify the civil penalty assessment. Such determination shall be within the sole discretion of the secretary or his or her designee.

(l) If the employer requests a hearing but the secretary or his or her designee denies the request for a hearing, the total civil penalty assessed in the notice shall be the final civil penalty.

(m) If the employer does not request a hearing or respond in writing to the notice, the total civil penalty assessed in the notice shall be the final civil penalty unless otherwise modified by the secretary or his or her designee.

(n) The department may file an action for the collection of civil penalties imposed pursuant to this section against an employer in the county where the violation occurred.

(o) All moneys received from the assessment of any penalty pursuant to this section shall accrue to the State General Fund.

(p) In addition to the civil penalties provided for in subsection (b), an employer who violates Act 2009-565 may be deemed guilty of a Class B or Class C misdemeanor. A first conviction shall be deemed a Class C misdemeanor. A second or subsequent conviction shall be deemed a Class B misdemeanor.

(q) In addition to civil penalties provided for in subsection (c), an employer who is found in violation of subsection (c) involving serious physical injury to or death of a minor may be deemed guilty of a Class A misdemeanor or Class C felony. A first conviction shall be deemed a Class A misdemeanor. A second or subsequent conviction shall be deemed a Class C felony.

(Acts 1995, No. 95-604, p. 1263, §28; Act 2009-565, p. 1654, §3; Act 2012-231, p. 424, §1; Act 2016-417, §1.)