(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]
