(a) Persons who are not aggrieved parties may submit
information concerning possible violations of the provisions described in
§655.805(a)(1) through (4) and (a)(7) through (9). No particular form is
required to submit the information, except that the information shall be
submitted in writing or, if oral, shall be reduced to writing by the Wage and
Hour Division official who receives the information. An optional form shall be
available to be used in setting forth the information. The information provided
shall include:
(1) The identity of the person submitting the information and the person's
relationship, if any, to the employer or other information concerning the
person's basis for having knowledge of the employer's employment practices or
its compliance with the requirements of this subpart I and subpart H of this
part; and
(2) A description of the possible violation, including a description of the
facts known to the person submitting the information, in sufficient detail for
the Secretary to determine if there is reasonable cause to believe that the
employer has committed a willful violation of the provisions described in
§655.805(a)(1), (2), (3), (4), (7), (8), or (9).
(b) The Administrator may interview the person submitting the information as
appropriate to obtain further information to determine whether the requirements
of this section are met. In addition, the person submitting information under
this section shall be informed that his or her identity will not be disclosed
to the employer without his or her permission.
(c) Information concerning possible violations must be submitted not later
than 12 months after the latest date on which the alleged violation(s) were
committed. The 12-month period shall be applied in the manner described in
§655.806(a)(5).
(d) Upon receipt of the information, the Administrator shall promptly review
the information submitted and determine:
(1) Does the source likely possess knowledge of the employer's practices or
employment conditions or the employer's compliance with the requirements of
subpart H of this part?
(2) Has the source provided specific credible information alleging a
violation of the requirements of the conditions described in
§655.805(a)(1), (2), (3), (4), (7), (8), or (9)?
(3) Does the information in support of the allegations appear to provide
reasonable cause to believe that the employer has committed a violation of the
provisions described in §655.805(a)(1), (2), (3), (4), (7), (8), or (9),
and that
(i) The alleged violation is willful?
(ii) The employer has engaged in a pattern or practice of violations? or
(iii) The employer has committed substantial violations, affecting multiple
employees?
(e) "Information" within the meaning of this section does not
include information from an officer or employee of the Department of Labor
unless it was obtained in the course of a lawful investigation, and does not
include information submitted by the employer to the Attorney General or the
Secretary in securing the employment of an H-1B nonimmigrant.
(f)(1) Except as provided in paragraph (f)(2) of this section, where the
Administrator has received information from a source other than an aggrieved
party which satisfies all of the requirements of paragraphs (a) through (d) of
this section, or where the Administrator or another agency of the Department
obtains such information in a lawful investigation under this or any other
section of the INA or any other Act, the Administrator (by mail or facsimile
transmission) shall promptly notify the employer that the information has been
received, describe the nature of the allegation in sufficient detail to permit
the employer to respond, and request that the employer respond to the
allegation within 10 days of its receipt of the notification. The Administrator
shall not identify the source or information which would reveal the identity of
the source without his or her permission.
(2) The Administrator may dispense with notification to the employer of the
alleged violations if the Administrator determines that such notification might
interfere with an effort to secure the employer's compliance. This
determination shall not be subject to review in any administrative proceeding
and shall not be subject to judicial review.
(g) After receipt of any response to the allegations provided by the
employer, the Administrator will promptly review all of the information
received and determine whether the allegations should be referred to the
Secretary for a determination whether an investigation should be commenced by
the Administrator.
(h) If the Administrator refers the allegations to the Secretary, the
Secretary shall make a determination as to whether to authorize an
investigation under this section.
(1) No investigation shall be commenced unless the Secretary (or the Deputy
Secretary or other Acting Secretary in the absence or disability) personally
authorizes the investigation and certifies --
(i) That the information provided under paragraph (a) of this section or
obtained pursuant to a lawful investigation by the Department of Labor provides
reasonable cause to believe that the employer has committed a violation of the
provisions described in §655.805(a)(1), (2), (3), (4), (7), (8), or (9);
(ii) That there is reasonable cause to believe the alleged violations are
willful, that the employer has engaged in a pattern or practice of such
violations, or that the employer has committed substantial violations,
affecting multiple employees; and
(iii) That the other requirements of paragraphs (a) through (d) of this
section have been met.
(2) No hearing shall be available from a decision by the Administrator
declining to refer allegations addressed by this section to the Secretary, and
none shall be available from a decision by the Secretary certifying or
declining to certify that an investigation is warranted.
(i) If the Secretary issues a certification, an investigation shall be
conducted and a determination issued within 30 days after the certification is
received by the local Wage and Hour office undertaking the investigation. The
time for the investigation may be increased upon the agreement of the employer
and the Administrator or, if for reasons outside of the control of the
Administrator, additional time is necessary to obtain information needed from
the employer or other sources to determine whether a violation has occurred.
(j) In the event that the Administrator seeks a prevailing wage
determination from ETA pursuant to §655.731(d), or advice as to prevailing
working conditions from ETA pursuant to §655.732(c)(2), the 30-day
investigation period shall be suspended from the date of the Administrator's
request to the date of the Administrator's receipt of the wage determination
(or, in the event that the employer challenges the wage determination through
the Employment Service complaint system, to the date of the completion of such
complaint process).
(k) Following the investigation, the Administrator shall issue a
determination in accordance with to §655.815.
(l) This section shall expire on September 30, 2003 unless section
212(n)(2)(G) of the INA is extended by future legislative action. Absent such
extension, no investigation shall be certified by the Secretary under this
section after that date; however, any investigation certified on or before
September 30, 2003 may be completed.
[65 FR 80234, Dec. 20, 2000]
