DIVISION OF LABOR
ARKANSAS DEPARTMENT OF LABOR AND LICENSING
Rules effective as of July 2, 2020
The Arkansas Department of Labor and Licensing is an agency of state government created by Act 910 of 2019, Ark. Code Ann. § 25-43-1101et seq. The Labor Standards Section is working unit within the Division of Labor, Department of Labor and Licensing. The Director of the Division of Labor has regulatory or enforcement authority over:
The Labor Standards Section also oversees the licensure of private employment agencies. Ultimate authority for the operation of the agency is in the Secretary of the Department of Labor and Licensing, who is appointed by the Governor. The Director of the Division of Labor has the regulatory, enforcement, and administrative authority for the Labor Standards Section. The individual charged with the day-to-day operations is referred to as the Labor Standards Manager, who is selected by the director. From time to time, the director promulgates rules.
The mailing address and telephone number for the Labor Standards Section is:
Labor Standards Section
Division of Labor
Arkansas Department of Labor and Licensing
900 West Capitol, Suite 400
Little Rock, AR 72201
(501) 682-4535
The division makes available a list of persons holding certain responsibilities for handling FOIA requests, licensing questions, and complaints against licensees so that the public may obtain information about the agency or make submissions or requests. The names, mailing addresses, telephone numbers, and electronic addresses can be obtained from the agency's office or website. Additionally, the Labor Standards Section can be contacted directly as listed above.
The section has a list of official forms used by the section and a list of all formal, written statements of policy and written interpretative memoranda, and orders, decisions and opinions resulting from adjudications, which may be obtained from the section's office or website. The Division of Labor website is: https://www.labor.arkansas.gov/.
Copies of all forms used by the section, written statements of policy and written interpretive memoranda, and all orders issued by the agency may be obtained from the section's office.
The director has been authorized by the Legislature to promulgate rules. Ark. Code Ann. § 11-4-209(a) (minimum wage and overtime); §§ 11-6-111(b)(2) and 11-12-105(1) (child labor); and § 11-11- 204(d)(private employment agencies). The agency follows the procedural requirements of the Arkansas Administrative Procedure Act, in particular Ark. Code Ann. § 25-15-203 and § 25-15-204. Additionally, the agency is required to abide by the provisions of Ark. Code Ann. § 10-3-309.
The process of adopting a new rule or amending or repealing an existing rule (hereinafter referred to "rule-making") may be initiated by request of the director that the staff submit proposed drafts. Additionally, staff of the agency may request permission of to initiate rule-making. Third persons outside the agency may petition for the issuance, amendment, or repeal of any rule.
Third parties may initiate rule-making to adopt, amend, or repeal a rule by filing a petition with the division to initiate rule-making. The petition must contain the name, address, and telephone number of the petitioner, the specific rule or action requested, the reasons for the rule or action requested, and facts showing that the petitioner is regulated by the division or has a substantial interest in the rule or action requested.
The petition to initiate rule-making shall be filed with the Director of the Division of Labor.
Within thirty (30) days after submission of the petition, the director will either deny the petition, stating its reasons in writing, or will initiate rule-making.
Thirty (30) days before the public-comment period ends, the division will file with the Bureau of Legislative Research the text of the proposed rule or amendment as well as a financial impact statement and a Bureau of Legislative Research questionnaire as provided by Ark. Code Ann. § 10-3-309.
The division will give notice of proposed rule-making to be published pursuant to Ark. Code Ann. § 25-15-204. The notice will set any written comment period and will specify the time, date, and place of any public hearing.
The division shall cause its rules to be published and made available to interested persons. The publication must include:
The published rules of the division will be organized substantially in the following format:
By reference in a rule, the division may incorporate all or any part of a code, standard, rule, or other matter if the division finds that copying the matter in the division's rule would be unduly cumbersome, expensive, or otherwise inexpedient. The reference in the rule must fully and precisely identify the incorporated matter by title, citation, date, and edition, if any; briefly indicate the precise subject and general contents of the incorporated matter; and state that the rule does not include any later amendments or editions of the incorporated matter. The division may incorporate such a matter by reference in a proposed or adopted rule only if the division makes copies of the incorporated matter readily available to the public. The rules must state how and where copies of the incorporated matter may be obtained at cost from the division, and how and where copies may be obtained from an agency of the United States, this state, another state, or the organization, association, or persons originally issuing that matter. The division must retain permanently a copy of any materials incorporated by reference in a rule.
The proponent of a rule may request the division to adopt an emergency rule. In addition to the text of the proposed rule or amendment to an existing rule and any other information required by Rule 010.14-004(C), the proponent will provide a written statement setting out the facts or circumstances that would support a finding of imminent peril to the public health, safety, or welfare.
Upon receipt of the written statement requesting an emergency rule-making and documents or other evidence submitted in support of the assertion that an emergency exists, the division will make an independent judgment as to whether the circumstances and facts constitute an imminent peril to the public health, safety, or welfare requiring adoption of the rule upon fewer than 30 days' notice. If the division determines that the circumstances warrant emergency rule-making, it will make a written determination that sets out the reasons for its finding that an emergency exists. Upon making this finding, the division may proceed to adopt the rule without any prior notice or hearing, or it may determine to provide an abbreviated notice and hearing.
The emergency rule will be effective immediately upon filing, or at a stated time less than ten (10) days thereafter, if the division finds that this effective date is necessary because of imminent peril to the public health, safety, or welfare. The division will file with the rule the division's written findings justifying the determination that emergency rule-making is appropriate and, if applicable, the basis for the effective date of the emergency rule being less than ten (10) days after the filing of the rule pursuant to Ark. Code Ann. § 25-15-204(e). The division will take appropriate measures to make emergency rules known to persons who may be affected by them.
A declaratory order is a means of resolving a controversy or answering questions or doubts concerning the applicability of statutory provisions, rules, or orders over which the division has authority. A petition for declaratory order may be used only to resolve questions or doubts as to how the statutes, rules, or orders may apply to the petitioner's particular circumstances. A declaratory order is not the appropriate means for determining the conduct of another person or for obtaining a policy statement of general applicability from an agency. A petition or declaratory order must describe the potential impact of statutes, rules, or orders upon the petitioner's interests.
The process to obtain a declaratory order is begun by filing with the Director of the Division of Labor a petition that provides the following information:
This Rule, 010.14-007, applies in all administrative adjudications conducted by the Labor Standards Section of the Division of Labor. This procedure is developed to provide a process by which the division formulates orders (for example, an order revoking a license to practice, or imposing civil penalties).
The Director of the Division of Labor shall preside at a hearing or may designate an examiner, referee, or hearing officer to preside at a hearing.
If there are separate matters that involve similar issues of law or fact, or identical parties, the matters may be consolidated if it appears that consolidation would promote the just, speedy, and inexpensive resolution of the proceedings, and would not unduly prejudice the rights of a party.
If it appears that the determination of the rights of parties in a proceeding will necessarily involve a determination of the substantial interests of persons who are not parties, the presiding officer may enter an order requiring that an absent person be notified of the proceeding and be given an opportunity to be joined as a party of record.
Unless the presiding officer otherwise orders, every pleading and every other paper filed for the proceeding, except applications for witness subpoenas and the subpoenas, shall be served on each party or the party's representative at the last address of record.
All requests for relief will be by motion. Motions must be in writing or made on the record during a hearing. A motion must fully state the action requested and the grounds relied upon. The original written motion will be filed with the division. When time allows, the other parties may, within seven (7) days of the service of the written motion, file a response in opposition. The presiding officer may conduct such proceedings and enter such orders as are deemed necessary to address issues raised by the motion. However, a presiding officer, other than the director, will not enter a dispositive order unless expressly authorized in writing to do so.
A respondent may file an answer.
Requests for continuances will be made in writing. The request must state the grounds to be considered and be made as soon as practicable and, except in cases of emergencies, no later than five (5) days prior to the date noticed for the hearing. In determining whether to grant a continuance, the presiding officer may consider:
The presiding officer will conduct the hearing in the following manner:
If a party fails to appear or participate in an administrative adjudication after proper service of notice, the division may proceed with the hearing and render a decision in the absence of the party.
The responsibility to record the testimony heard at a hearing is borne by the division. Upon the filing of a petition for judicial review, the division will provide a transcript of testimony taken before the division. If the division is successful upon appeal, the division may request that the court assess the costs against the opposing party.
In addition to any other considerations permitted by law, if applicable, the division in imposing any sanction or fine may consider the following:
The division will serve on the respondent a written order that reflects the action taken by the division. The order will include a recitation of facts found based on testimony and other evidence presented and reasonable inferences derived from the evidence pertinent to the issues of the case. It will also state conclusions of law and directives or other disposition entered against or in favor of the respondent.
The order will be served personally or by mail on the respondent. If counsel represents respondent, service of the order on respondent's counsel shall be deemed service on the respondent.
235.08.20 Ark. Code R. § 003