City Plan Dev. V. State, Labor Comm'R
| Citation | 117 P.3d 182 |
| Decision Date | 11 August 2005 |
| Docket Number | No. 40636.,40636. |
| Parties | CITY PLAN DEVELOPMENT, INC., Appellant, v. OFFICE OF the LABOR COMMISSIONER, DEPARTMENT OF BUSINESS AND INDUSTRY, STATE OF NEVADA, Respondent. |
| Court | Supreme Court of Nevada |
Orin G. Grossman, Las Vegas, for Appellant.
Brian Sandoval, Attorney General, and Dianna Hegeduis, Senior Deputy Attorney General, Carson City, for Respondent.
Before ROSE, GIBBONS and HARDESTY, JJ.
In this appeal, we examine the parameters of the Labor Commissioner's authority to conduct hearings, render decisions and assess penalties involving prevailing wage issues under Nevada labor law. We conclude that, under the circumstances of this case, the Labor Commissioner properly heard and rendered a decision on public works project employees' claims alleging inadequate payment under Nevada's prevailing wage statutes. While substantial evidence supports both the Labor Commissioner's determination that the employees were not paid prevailing wages and his corresponding awards, we nevertheless conclude that the Labor Commissioner improperly assessed the employer a double penalty.
The Clark County Board of County Commissioners awarded appellant City Plan Development, Inc., a contract to build a public work, Fire Station #26, which was completed in September 1999. Thereafter, twenty individuals filed wage claims against City Plan. The Office of the Labor Commissioner issued a notice of violations and scheduled a hearing on the matter. Former Deputy Labor Commissioner David Hill presided over the hearing and issued a decision adverse to City Plan on June 13, 2000.
City Plan petitioned the district court for judicial review of the June 13 decision. The district court set aside the June 13 decision and remanded the matter for a new hearing limited to the wage claims of Rogelio Arteaga, Juan Cruz Guerrero, Sergio Reyes, Victor Chavarin Flores, Jesus Jarero Victor, Jose Luis Jarero, Bernabe Lopez, and Narsiso Vallejo Guillen. The district court also ordered that if the hearing officer ultimately awarded any monetary amount to the claimants, he had to specify precisely the dates and hours worked by the claimant, the wage rate applicable to the work performed, and the wage rate actually paid.
Subsequently, Larry Dizon, a senior investigator in the Labor Commissioner's Office, prepared an amended administrative complaint pertaining to the eight specified individuals. Gail Maxwell, the chief compliance audit investigator, signed it. Labor Commissioner Terry Johnson, acting as the hearing officer, conducted a second hearing.
At the hearing, Lila Rodrigues, who testified that City Plan employed her in various administrative capacities, explained that she usually prepared the payroll for the fire station project employees from timecards submitted by supervisors and signed by the employees. Even so, on some occasions, according to Rodrigues, the foreman or other supervisors would call in the employees' hours, which she copied onto timecards used to calculate the payroll. Later, the employees signed the timecards, either when given to them by a superintendent at the jobsite or when they picked up their paychecks.
Rodrigues testified that the employees' wages were determined in accordance with predetermined public works projects wage schedules for specific job classes, based on notations on the employees' timecards indicating their particular job classification. For instance, Rodrigues explained, a notation of "framing and sheathing" indicated a particular type of carpentry. Apparently, the supervisors made the notations on the timecards.
Next, the Labor Commissioner heard testimony from five of the claimant employees: Juan Cruz Guerrero, Jesus Jarero Victor, Jose Luis Jarero, Narsiso Vallejo Guillen, and Victor Chavarin Flores. With the exception of Cruz Guerrero, each of these claimants testified that he had worked on the City Plan fire station project for approximately 3½ days in April 1999, or a total of 37.5 hours. These four claimants also testified and agreed that Vallejo Guillen, on his and their behalf, had negotiated with Jose Ochoa, a City Plan foreman in charge of hiring workers to perform framing (and layout and plating) work on the project, for a total payment of $1800. Accordingly, the claimants asserted they were each paid a flat rate of approximately $360 for their work, or one-fifth of the $1800 payment.1
These four claimants also testified to endorsing checks for payments that they never received, receiving inaccurate payment documentation, signing blank timecards, and/or discovering that their signatures had been forged on certain documents. For instance, Jarero Victor averred that he had signed a blank timecard and had never written any work hours on it. He confirmed at the hearing that the timecard nevertheless indicated that he had worked 44.25 hours at $29.29 per hour and 4.25 hours at $43.93 per hour, for which he was owed a net total of $1100. But when he went to Ochoa's house to pick up his paycheck, he said Ochoa instructed him to endorse the $1100 check over to Ochoa, and Ochoa paid him only $360 in cash in return. Jarero Victor also identified subsequent timecards indicating that he had earned additional wages, but those cards did not bear his signature and reflected dates when he had worked for a different employer. According to Jarero Victor, he later received a W-2 form indicating that he had earned $5000 during his City Plan employment. Nonetheless, Jarero Victor insisted that he had never received more than $360 for his work on the project.
The other three claimants who were part of the negotiated framing agreement similarly testified that they had signed blank timecards; some signed these documents for fear of not getting paid at all. At least one of them admitted to having endorsed a $1100 paycheck, but he and each of the others denied ever actually receiving anything besides the approximately $360 cash payment. They also denied receiving and endorsing subsequent City Plan paychecks.
The fifth claimant, Cruz Guerrero, testified that he began work on April 26 or 27, 1999, and continued working for approximately two months. According to Cruz Guerrero, he performed carpentry work on the project, leveling walls and installing plywood sheets; at the hearing, Rodrigues suggested that this work was consistent with the separate job classification of "laborer," also within the field of carpentry. Like the other claimants, Cruz Guerrero testified that he had entered into a separate oral agreement with Ochoa — Cruz Guerrero was to be paid $16 per hour. Cruz Guerrero averred that, while he was actually paid $16 per hour for the first 39½ hours he worked, the corresponding paycheck indicated that he had only worked 25 hours. Cruz Guerrero also testified that he had signed several blank timecards and that his other paychecks also reflected fewer hours than he had actually worked and, consequently, a rate of pay substantially higher than what he had actually received.
Finally, Dizon, the Labor Commissioner's Office investigator, also testified at the hearing. In particular, he noted that his investigation of the original complaints had resulted in certain findings that corroborated the claimants' statements.
After the hearing, the Labor Commissioner determined that City Plan had violated the prevailing wage statutes and was indebted to each of the above claimants. As directed by the district court, the Labor Commissioner's decision listed in detail the dates and hours worked by the claimants, the type of work performed, the rate of pay received, and the rate of pay that City Plan should have paid. The decision specified the amount thereby owed each claimant, assessed an administrative penalty, and mandated forfeitures and a period from which City Plan would be disqualified from being awarded public work contracts.
City Plan petitioned the district court for judicial review, which the court denied. City Plan appeals, challenging the Labor Commissioner's authority to proceed with wage claims in this case and the administrative decision itself.
Standard of review
This court, like the district court, generally reviews administrative decisions under an abuse of discretion standard.2 An abuse of discretion occurs when the record does not contain substantial evidence supporting the administrative decision.3 Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.4 While this court reviews purely legal questions de novo, a hearing officer's conclusions of law, which will necessarily be closely tied to the hearing officer's view of the facts, are entitled to deference on appeal.5 This court has determined that "`[a]n administrative . . . decision based on a credibility determination is not open to appellate review.'"6
City Plan makes several challenges to the Labor Commissioner's authority to proceed in this matter. City Plan first argues that the Labor Commissioner lacked authority to hear this matter because he failed to follow the requirements of NRS 607.160 and NRS 607.170 before holding the administrative hearing. NRS Chapter 607 governs the Office of the Labor Commissioner, providing that the Labor Commissioner "[s]hall enforce all labor laws of the State of Nevada."7 Accordingly, that chapter defines the scope, generally, of the Labor Commissioner's permissible powers. NRS 607.160 and NRS 607.170 authorize the Labor Commissioner, after due inquiry, to take assignments of wage claims for prosecution or to refer claims to the Attorney General when the claimants are financially unable to employ counsel.8 Nevertheless, these provisions, which use the word "may," not "shall," do not set forth mandatory prehearing procedures that the Labor Commissioner was required to follow in this matter but rather delineate the general prosecutorial...
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