U.S. Department of Labor Employment Standards Adlninistration Wage & Hour Division 230 S. Dearborn Street, ROOin 530 Chicago, IL 60604 CERTIFIED NO: 7010 1870 0001 7809 4072 August 25, 2016 Michael Grabell ProPublica 155 Avenue of the Americas, 13 th Floor New York, NY 10013 Dear Mr. Grabell: This letter responds to your Freedom of Information Act request of July 19,2016 in which you requested copies of all documents related to the investigation of Cal-Clean. Your request was received in our office on August 18,2016 and assigned tracking number 809849. Enclosed are forty-seven (47) pages of responsive documents to your request for records. Thirty-six (36) pages of payroll data were withheld pursuant to Exemptions 6 & 7(c). Thirtythree (33) pages of employee personal interview statements were withheld pursuant to Exemptions 6 & 7(c). Redactions were made in the documents as indicated, pursuant to Exemptions 4,5,6, 7(c) and 7(e). Financial information (Exemption 4); Opinions and recommendations (Exemption 5); Personal information (Exemptions 6 and 7(c); Techniques and procedures (Exemption 7(e). We withheld certain confidential "commercial or financial information" pursuant to Exemption 4 ofFOIA. Exemption 5 permits the withholding of opinions, advice, recommendations, or other deliberative policy-making process preceding the issuance of a final agency determination. Exemption 6 protects information about individuals in "personnel and medical files and similar files" when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy Exemption 7(c) protects certain identifying information (names, etc.) and some personal contact information under FOIA. Exemption 7(e) permits the withholding of all law enforcement information that "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law." Because your request did not require a significant amount of agency staff time or resources to process, no processing fee has been assessed. If you consider this an adverse determination, you have the right to file an administrative appeal. Your appeal must be received by the Solicitor of Labor within 90 calendar days of the date of this initial denial letter. Address your appeal to the following office: Solicitor of Labor, Division of Management and Administrative Legal Services, Room N-2420, U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, D.C. 20210. Your appeal may also be sent by email to FOIAAppeal@dol.gov. Appeals submitted to any other address will not be accepted. Your appeal must state in writing the grounds for the appeal. It should also include a copy of the original request, the response to your request, and any supporting statement or arguments. The appeal letter, the envelope, and the email subject line, should be clearly marked "Freedom of Information Act Appeal. " The Office of Government Information Services (OGIS), an office created within the National Archives and Records Administration, offers mediation services to FOIA requesters for dispute resolution. The OGIS may be contacted in any of the following way: 1) Mail- Office of Government Information Services, National Archives and Records Administration, Room 2510, 8601 Adelphi Road College Park, MD 20740-6001; 2) Email: ogis@nara.gov) Phone: 301-8371996 or Toll-free: 1-877-684-6448; 4) Fax: 301-837-0348. If you have concerns about the service you received from the Wage and Hour Division you can contact the Department's FOIA Public Liaison Mr. Thomas Hicks. He can be reached at the Office of the Solicitor U.S. Department of Labor, Room N2428, 200 Constitution Avenue, NW, Washington, DC 20210 or by calling 202-693-5427 or emailing him at hicks.thomas@dol.gov. &~iL Karen R. Chaikin Regional Admini rator Wage and Hour Division Enclosure WHISARD CompliaDce ActioD Report u.s. Department or Labor Wage and Hour Divis'on Case 10: 1758677 Local Filing Number: 201S.163-14745 . WHMIS Case Number: Originating District: Columbus OH DIstrict OffIce Investigating. District: Columbus OH District Offk Lead Investigator; Registration Date: 0412212015 Assignment Date: fUl2212D15 mployer Information Trade Name: Cal-C/ean Address: Legal Name: callaghan snd Callaghan, Inc. 192530th Sf NE EIN: PO BOX 38935 GraensbofO, Ne 27438 County: Stark NAICS Code: 31161 Canton, OH44705 No. Of Employees: _ I Dvestigation Information Period Investigated From: To: Investigation Type: Investigation Tool: Compliance Status: 0412412013 tul2412015 Ful/lnvestigatlon Agree to Comply BNPI: Reinvestigation; Recurring Violation: Future Compliance Agreed: Involved in AG: o BWFS! [J ROINO Review: D eMP; n Follow Up Investigation: 0 Litigation: 0 Other Action: 0 Civil Action: 0 Den 81 of Future Certificate: 0 Criminal Action: 0 BW Payment Deadline: Submit for Opinion: 0 Trailer Conns attached: ltJ o fa . Recommended Action: 0 CL Violatio. I Compliance Stafus Violation CMPs· so.oo .HO .Non-Ag-16or17/ Agree to Comply $0.00 1_ Dale; 09129120157.29:51 AM Case 10: 1758677 Page 1 wmSARD Compliance Action Report CL Violation I Compliance Statu CL Record Keeping-Per eMP!" 4 $0.00 $0.00 ChIld where records went not kept - No CMP I Agree . to Comply $63, "<.Iv."". B Total Violations Under CL: FLSA Violation I Complillnee Status BWsAgreed Failure to keep accurate l8CordS I Agree to Comply 1 o $0.00 SO.OO so.oo $0.00 FLSA Totals: o o $0.00 $0.00 $0.00 $0.00 o Unduplicated Employees ound: Total Amoun . BWs Computed: . Total Amount LOs Computed: Conclusions & Recommend eMPs· 1 Total VIolations Under FLSA: t COlnplllte4 LOs Agreed Total Amount BWs A SO.oo Total Amount LDs Agreed: $0.00 nODS: Ent CoV. CL fnv resulting ftOm OSHA Ref. VIols: Sec; 11; ER fall to malnl1l1n time & pay records for 1 employee. Sec 12: HO #10 viol- 4 mlnolS (age 17) working on poultry plant's "killing floor" 1 minor injured c: using CLEPP most ser injury(38%impaJrment) (left leg below knee amputation) 3 other minors not injured but .Im employed. CL RK: failed to main recs used forverlf DOSs. Rae CliPs be assessed {40K for C/epp ser InJutyI23,250 for 3 minors slm employed)Rec admln close upon pmt of any assassed CMPs. WHJ Si ature Reviewed By'o_ --.r._ _ __ _ __ ._ --f+-f-_ , Date: 09129/20157:29:51 AM Case 10: 17586n Date:_ -+-+-_ _ Page 2 Collaghan & CDJlaghan, Inc. Dba.:CDI-Cleon 1925 3rt' St. NE COnton, OH 44705 Cose ,le'201S-163-1474S Whisald1l1758677 COVERAGE 3(sll(A)j&(ii): Since the dollar volume annually exceeds $500,000, at least 2 full time workers are employed) and employees handle goods that have moved in interstate commerce, enterprise coverage has been established for the investigative period. See evidence below in regar() to evidence ·that supports the basis for coverage as well as other relevant background data.. Period for th· I "nflation: 3/09/14 through 4/J 8/15 Nature of Bus· w: Subject firm of this investigation is a company that cleans and sanitizes meat processing facilities and meat processing equipment. The fum is contracted to do this work by Case Farms at its chicken processing facility Jocated at 1925 30th Street NE Canton, OH. The firm perfonns this work at around 20 different meat processing fj cHilies around the United States. ~lY!l!i. The ADV for the Enterprise in 2012, 2013, and 2014 was in excess of I tentate C merce: Employees regularly use good that have moved in interstate commerce such as: knives, gloves, aprons, & poultry processing equipment manufactured by Berry Plumbing Equipment located in Clennont, Georgia. Additionally, the proper sanitation of the processing plantts equipment is required in orde for the pJant to operate; as such the employees' work js closely related and directly essential to the production of oods "chicken" which is shipped in interstate commerce. Workforce: The establishment employs around 25 employees and the en rprise employees around 330 employees. MODO: This finn is headquartered in Greensboro, NC which is within the jurisdiction 0 the Raleigh, NC District Office. The firm 's corporate headquarters is located at: 1216 Tarrant Road Oreensboro, NC 21409 Structure: The firm is headquartered in Greensboro. NC' howcv·er. the fum is incorporated in the State of Ohio. This finn was incorporated on Apr'181b of1992. t is presided overby: BOli Steve R. Callaghan Title: Owner 50% 1 • Callaghan & callaghan, Inc. Dbo.:CoJ..Cleon 1e'201.S-163·1474S Whlsard'1758677 h 1925 Jd St. NE DH44705 Ned R. Callaghan Title: Owner 50010 Seedoa 3(d) Employer: Steve R. Callaghan and Ned R. Callaghan arc the owners and managers of the finn. They have overall responsibility for the management of the firm. Steve and Ned Callaghan are employers that meet the definition of section 3(d). They are involved in the daily activities of the business. The Callaghans hire and fire employees, direct their work, and otherwise act in the direct interest of the corporate entity in relation to employees. Joint E ploy e t Aaaly : The investigation reviewed the possibility of potential joint employment reJationship between Cal-Clean and Case Farms in regards to the sanitation workers employed at the facility. Cal-Clean is a separate legal entity owned and ,operated by brothers Ned and Steven Callaghan. The finn employs around 330 employees at 20 meat processing facilities throughout the United States. Ned CalJaghan has stated that the company is currently contracted to perform sanitation work at 3 Case Farm facilities, in other words, Case Fann' s represents t 5% of CaJ-CJean' s clientele. The investigation disclosed no evidence ofcommon control or ownership between Cal.. Clean and Case Fanns; no basis for considering both entities to constitute a single enterprise for the purposes of the FLSA. Case fanns was not found to control, be controlled by, or under common control with CaI-CIean or vice f'urthennon; the investigation did not disclose any sort of arrangements between CaJ-Clean and Case Farms to share employees. The work performed by employees was found to be controlled and supervised by Cal·Clean. Not single employee interviewed identified Case Fanns as their employer, a Case Penns employee as someone they reported ~ or a Case Fanus employee as someone who diRaed their work. Given the nature of the work, cleaning the processing equipment, it is performed after the ,majority of Case Fanns' employees have finished their work and left for the day. All supervisors, managers, and individuals directing and overseeing Cal..clean's work at the location were found to be Cal-Clean employees. Hiring, faring. scheduling, setting rates of pay~ and training was all found to be conducted by Cal-Clean and not Case Farms. Furthennore, CalClean maintaIn its own time keeping system fo.r its employees working at th location and also processes and manages its own Cat·Clean directs, contro1st and supervises the work ofits employees at the plant, Cal-Clean controls the conditions of employment corresponding to its workers at the pJant; and Cal-Clean handles administrative functions in regard to its employees at the pJant such as handling payroJl, obtaining workers compensation insurance, providing safety training, etc. 2 performed OIl ~_ poultry. The work performed emJlM'e6S is mteanu surrounding area is in order to produce the cbicken. in. SlDary manner. who work Farms do 50 consistently. The workers aren't typically working for other companies perfonninl sense, pctlllW.en<:y be~twelao __..,..."wan employees is relatiwlY mRilJed 1. lWJJ found 10 biJ CDm'nJllt'KI Not a ,;"gIl! employee illtel'Viewed kiemijled e•• Farms .,hell" employer, Q e~ _ Bf1IUenetlwy I'I!J1DI*tl to, or Q C. . FQ!I'IIU 1ItIIpl0Jllle til someone 'Who directed their 'WOI'l All supe1'ri8or6, I'NZlltlgera, IJ1'Id i"diYidWJ18 directillg oqr8ef.~iM.r('l2i..Q'«m ~ work Ql the lOCIIliOll wenr/mmd to IJe """'Yli""""""I~' emp'~es. Cal-Cl«m dftcu" c~ Qfl(/8JlPe1'ViJe8 lite wont offlS e~8 til lhe plant. TIM 2. Hlring.j#rlRg, ~m& C01IIlucted by CaI-C1e1Jll tmd not htwe ofpay, and ImiIIbtg 'WtIt allfound 10 be Famu. (&re B eVdbtta) ea. Fan118 WtB 1IOt empIoymtml colldidOlUfor Cttl..Cletm 'a J. 3 Callaghan & Callaghan, Inc. Oba.:CttI-CIean h 1925 3d St. NE Canton, OH 44705 Case lle#2Dl5-163-14745 Whisard11758677 days a week; week after week, oJ Co.fe Farm ~s Can/on, OH facility. There is, in Ihis sense, permanency between Cal-Clean's workers and Case Farms. Having said that. Cal-clean is an independent company that works aJ 17facilities not owned by Case Farms. II is reasonable to assume lhallhe onyemployee could be transferred 10 another facility not owned or operated by Case Farms. 4. ,Repetitive and Rote Nature of Work. To the extent that the employee's work for the potential joint employer is repetitive and rote, is relatively unskilled, and/or requires little or no training, those facts jndicate that the employee is economicaUy dependent on the potential joint employer. The work performed by employees is relatively unskilled and repetitive. The investigaJion found that the work employees engaged in required litlle 10 no prior experienced or specialized knowledge. Employees use high pressure hoses to spray offprocessing equipment, hand wash plastic totes in bosil'lSt or squeegee floors behind other w01'kers who are cleaning offthe processing eqUipment. Lillie training is required prior beginning work. 5. Integral to Business. If the employee's work is an integral part of the potential joint cmployer's business, that suggests that the empJoyeeis economically dependent on the potential joint employer. Employees cleaned equipment utilized to slaughter and process poUltry. The work performed by Cal-Clean ~ employees is integral to Case Farm :r operoJion. The proper sanitation oftheir processing equipment and sUn'ounding area is required in order 10 produce the firm's product, chicken, in a sanitary manner. 6. Work Perfonned on Premises. The employee's performance of tile work on premises owned or controlled by the potential joint employer indicates that the employee is economically dependent on the potential joint employer. The work performed by Cal-Ciean's employees was performed completely on Case Farm's premises. 7. Perfonning Administrative Functions Commonly Perfonned by Employers. To the extent that the potential joint employer performs administrative functions for the employee. such as handling payroll, providing workers' compensation insurance, providing necesSBJY facilities and safety equipment, housing, or transportation, or proViding tools and materials requjred for the work, those facts suggests economic dependence by the employee on the potentia) joint employer. Cal-Clean maintains ils own time ,keeping system/or its emrp/(J')Je~~s W't'1rjo'jtra location and also processeJ' and manages ils own payroll. Cal-Clean handles ,adminisJrativefunctions in ,a/ the plont such as handling payroll. obtaining workers compensation insurance, providing safety training. etc. CuI Clean provides the IISpray guns'" employees use to spray off machines. boots. jackets. and ~queegees. However. pari qf the needed equipment required 4 Callaghan & CollaghanJ Inc.. Case F;/~'2015..163-1474S WhlSorrJlJ 758671 Dba.:Col-Clean 1.925 3tf' St. NE CantoR, OH 44705 for cleaning (high pressure hose lines line scrubbers, etc.) is part oflhe plant's t infrastructure and there/ore case farm '5 equipment. An argument could be made that Case Farms is a "joint employer" in regards to Cal Clean's employees given that the work is integral to Case Farms' production, it is perfonned on Case Fanns' premises, there is pennanence in that the employees covered by tbisinvestigation work consistentJy at Case Fanns' facility, and the work is certainly low skilled in nature; however, the investigation found that Case Fanns did not assert control over Cal..clean's employees in ways that are representative of an employee/employer relationship. The factors cited above in regards to the relationship between the punitive joint employer and ,employees should be viewed holistically as opposed to simply talJied as 'for' or 'against' ajoint employment relationship. The investigation did not fmd that Case Farms directed, supervised, or controlled tbe work perfonned controlled the employment conditions of Case Farms' employees, or perfonned administrative functions commonly perfonned by employers. Cal·Clean, not Case Farms, supervised, hired, disciplined, directed, controUed, maintained time/pay records independently and autonomously of Case Farms for its own employees. If the investigation found that Case Farms assumed even part of these roles in regards to Cal·Clean's employees such as training or shared supervision then there would be a strong foundation for asserting the existence of a joint employment relationship, however; the investigation did not. Although, it could be argued that ajoint employment relationship ex.ists, when viewed holistically the absence of~ substandal control ofCal-CJean's employees by Cas'c Fanns indicates the contrary and as such this investigation did not find a joint employment relationship between Ca'-Clean's employees and Case Fanns. t EXEMPTIONS SHtiOD 13(a)l: One exemption was claimed and one exemption was found to be applicable. 541.100 Executiye Exemption Applicable: Charles 8aeider is employed as the location's Plant Manager. He earns a weekly salary of $1,000{52K). Sneider interviews, hires, disciplines, and directs the work of the 25 employees working on the sanitation crew. Sneider is customarily in charge of2 or more fuJI time employees and has as his primary duty management He meets the requirements of 541.1 00. 1_ Section I lee): No child labor exemptions were claimed, nor are any applicable. STATUS OF COMPLIANCE 5 Callaghan & callaghan, Jnc. Dba.:Col-CJt!an 1.925 3tf'St. NE Canton, OH 44705 Ie#ZOlS-J63-l474S WhfsordN1.758677 violations found within the scope of ,this investigatlon. The lowest hourly rate of pay was found to be $9. • No vio.lations found within the scope of this investigation. AU employee interviews and the employer's pay records show emplo~y~~s their regular rate for hours worked in excess of 40 in a single workweek. Seetio. 11: RKord XeepiglCL Record Keepid,: The fum fi iled to maintain documentation verifYing names and dates of birth for its employees The employer states that when an employee is hired photocopies of identification documents are sent to the firm's main office. The employer claims that after the infonnation is verified the copie of these documents are not retained by the finn. The firm did not maintain or provide Wage and Hour with a copy of a single any employees used to verify employee~s dates of birth. Sedio. 11: Child Labor: Four minors were found to be employed in violation of Hazardous Occupations Order IO(HO 10). SpecificaJly, the minors worked on a sanitation crew cleaning equipment utilized to slaughter and process poultry. This work was perfonned in an area where freshly killed chicken carcasses are dressed prior to chiUing. Live chickens enter the plant. arc slaughtered, and move througb a conveyor system where carcasses are cleaned, plucked, dismembered, and deboned by either machjnes or Case Fann employees. The dressing, removal of the bead, intemal organs, etc., takes place as the carcasses moves along a series of conveyors which convey them .to specific machines and delxlRing lines. With lheexception of messengers, runners, hand truckers, and similar occupations which require entering killing floor workrooms or workplaces infrequently or for short periods of time, all operations on the killing floor are prohibited by HO 10. The minor's in question worked a minimum ofS eight hours shifts a week, with the exception of one who only worked 4 days for the firm, and the entirety of their work took place on the plant's kiUing floor. As such the minors were found to be employed in violation of Hazardous Occupations Order 10. The specific minor's duties an= as fonows: Born ._was16 his employment in August of2014 current1YT7 years old. perfonned his duties on the pJant's killing floor. His work consisted in cleaning the sanitizin,vc1eaning specific poultry . machinery. In order to clean this machinery worked full time, at Jeast 5 days a week Me,ndllY regularly turned the machinery on and off. through Friday, from August of2014 to 15. employment ended when he was injured on 4/71J5(See below for iqjury details) and duties are confinned by his own statement, the statements of co-workers, pay and time records corresponding to his employment. uties consisted of cleaning the following machinery with a high pressure bose: Paw Line 6 .... .. Callaghan & Callaghan, Inc. Dba.:Cal-Dean 1t'2015-163-14745 Whisard#1758617 19253rJ1' St. HE canton, OH 44705 Malee: Berry Plumbing Model; BPGCOOOJ Seria1: 2 J80 (See exhibit D~39) Giblet Chiller A ler Make: Paul MueJler Company, Vessel Serial: 153603 Model; 23625 injured while cleaning this machine. consisted of cleaning the following machinery with a high pressure hose: Paw Liae Make: Berry Plumbing Model: BPGCOOOI Serial: 2180 Giblet c mer Auger Make: Paul Mueller Company, Vessel Serial: 153603 Model: 23625 Paw Picker Make: Berry Plumbing Equipment Mode': BEP 4-10 Serial: 2114 Deboae CODveyors! Debone Line (Cu8tom.ized Equipme t DO MakelModellSerial) -Born on was 16 years old at the commencement in Msreh IS currently 16 years _ perfonned his duties on the plant's killing floor. His work consisted 7 , .. Callaghan & CaHaghan, Jnc. Dbo.:cal·C/ean i#e1l2015-.163-14745 Whlsonl'1758677 1.925 3rt' Sf. NE was 16 years old at the ,currently 17 years old. performed his duties on the plant's killing floor. His work consisted 'pieces , meat that fen on the floor from machines after they were cleaned. squeegee ,m op to do this. worked for Cal-Clean for 4 weeks in August of stated he working for after his aunt disc~vered he was working and to quit. employment and duties are confmned by his own statement and the statements of Ac:cidentllDjury Detail. On the evening of 4nl15 17 year old minor was injured while engaged in cleaning the plant's liver auger chiJIer.resu amputation of the minor's left leg below the knee. 1be minor's own recollection of the accident is as follows: "The night when 1 was injuredl war finishing up cleaning lhe chiller. I gol up on the chiller in OI'del'lo close the lIQ/ve lhal corresponds 10 lhe chiller. I did this because Ihe ladders Ihalthey give u.s al work are 100 short for us ItJ be able 10 reach Ihe valves. .Also. J had seen other employees do lhe. same thing. When J Waf doing this 1 slipped and my leg/ell in/a the chiller. While I 'was falling 1 hit a tube and I believe Ihis cQUJ'ed the machine 10 tum on. The mochine grabbed my left leg. I screamed and the .fupervisor RouJ came. Raul came and was able Jo shul offthe chiller. Afterwards olhel' employees came and they l1"ied to help me. They could not gel me out. Finally the mechanics from the shop were able to gel me OUI• .After lhat .the peop/efrom lhe ambulance look me and brought me to Mercy Hospila/ in Canlon~ Ohio. My I'n1A~n""'rpr.t' were working nearby and saw what happened to 1M. ,. Theacc:ident and/or immediate aftennath of the accident was witnessed by employees_ The accident and injuries sustained while working are further supported/detailed by the Canton, Ohio Fire Department's patient narrative (EMS Report). The report reads as follows: Engine 7 responded to Case FOl'tnS-J915 3lf'St, N.E.lol' an indUSl1'ial accident invof.ving a male. U/a crews were led 10 'kept. E'A/Sjound a large number ofemployees surrounding machine wiJh the pt trapped and several other employees in the same machine. PI was reportedly cleaning 'he machine and It was not de-energized 01' locked out/Jogged out. It was no' clear how the machine started up with the pI in it. Pt is alert and oriented, .hawever does not speak any Eng/ish. PI's skin ;s pale and diaphoretic. Per fe//ow employees the pI is c/o bi/aleral leg pain. Engine 7 captain 8 · -. ileIl201S-163-1.4,745 WhlsarrJ#1758617 Collaghan '& COlkJghon, Inc. Dba.:Col-Qean 1925 3f!' St. NE Cantonl OH 44705 assumed command and noted Q severe leg injury and no apparent aM injuries. EMS noted the machine was de-energized however not locked aul 01' tag ed out. The staffimmediately corrected Ihis i&sue.TheJacil;ty staffhad dISassembled the machine pr:or 10 rescue arrwin . Engine 7 cr,ewsand stafff/allifted the pi and placed him on the awaiting Reeve IS board. EMS secured pt to the REEVE's. EMS decided 10 splint the pi's leg as is due 10 the se'lerity of injury. EMS noted his left leg rolaled J80 degrees and his heel was resting on his left hip. PI was laken to ambulance for furlhe" assessment. EMS assessed vital as above. PI'sc/Dlhing was cut offincluding his boots and socks. EMS performed a rapid trauma exam as/allow.f: ,HEAD: no injuries to tile head orface, NECK,' No jvd. trachea was mid/ille. c-~'P;ne with no pop. deformity or crepitus. CHEST: no,flai/ segmenJs, [un's were clear bilalel'ally, ABD-soft. no palpable masses, no DCAP·BLS, PELVIS/HIPS: stahle no deformity or crepitus, contusions 10 the right hip/thigh. BACK: no DCAP-BLS-l1C, UPPER EXTREMiTIES: no DCAP-BLS-TIC. LOWER EXTREMlTIES: multiple contu.fimu to the right hip. thigh, cap rejillio the toes was present at 4 sec.. LEFT-Q3 described above. cap refill to the loes@ 4 sec. EMS left pants intact over injury due to the joci ;/ was controlling bJeeding. EMS placed 2 iv's and place the pIon monitor and oxygen. En ~ute EMS notified MMC who hod no further orders. Ula pi war placed in er 9 and report was given 10 mUltiple staffincluding RN and MD. Wa .e and Hour was able to obtain 8 copy of the patients dischar c instructions from the injured minor. The docum nt lists the Reason for Visit as: QIi u 'a, Amputation of Left Lower Extremity shock. J Finally, medical TeWrds have been obtained from Medical Mercy Center the hospital was initially admitted and treated for his injuries. eMP Assessment Hazardous Occupations Order 10: FOH 54f02{c)3. States that "serious injury" for child labor purposes are any of 3 on·the- job injuries that are directly or indirectJy caused by child labor violation. The first of the 3 definition states: "Any pennanent anatomical or physiological injury to any body system (e.g., neurological, musculoskeletal, special sense organSt cardiovascuJar) or any pennanentpsychological injury." 29 CFR 579.1 (aX JXiiXB) defines serious injury as: "'(B) Pennanent lo~ or substantialimpainnent oftbe function ofa bodily member, organ, or mental faculty, including the loss of all or part of an ann, leg, foot, hand or other body part;" The investigation found that ] 7 year oid minor was injured wbile employed in 'vioJabon ,o fhazardous occupations this inJury left ,Ie was amputated below the knee. This constitutes a permanent anatomical injury and the1retore meets tbe FOH's and 29 CFR's definition of a serious child labor injury. In accordance with the guidance in Wage .and Hour Memorandum No.2009-3 Subject: Assessment of Child ,Labor Civil Money Penalties. the MW Regional Office. the National Office Brach of Child Labor and Special Employment Procedure, the Regional Office of tbe Solicitor, 9 Callaghan & callaghan, Inc. Dba.:CaI·Clean J9253tf' St. NE Conton" DH 44705 case file'2015-1.63-1474S Wh/sord#1758677 El• • • and the National Office of the Solicitor have been consulted for guidance regarding the "seriousness" of this injury and subsequently the appropriate corresponding eMP assessment. (See disposition) It bas been detennined that since the injury involved apennanent loss of the function oia bodily member(Perez's left leg), it occurred after May~ 201b 2008. and the jnjury occurred and was caused while the minor was working in violation of HO 10 the injury should be categorized as a Child La'bor Enhanced Penalty Program (CL PP) serious injury. CMP amounts for CLEPP serious injuries are based on a detenn 'nation of the level impainnent caused by the injury and are outlined in Wage and Hour Mem randum No.2009-3. Aggnva· Faeton In addition to employed in VIOJlatKln the inv igation found another 3 minors were also nazar(l'ou5 occupations order 10. FOH S4m2(c)S states: "For eMP computations of the violations for minors who worked 1n the same HO or Reg 3 prohibited occupation, or during prohibited reg 3 hours, that directly or indirectly caused the death or serious injury of some other minor(s). a multiplier of 5.0 will be applied to the Standard Base CMP amounts of those violation ........••.. tt AU minors were employed in violation of hazardous occupations order 10 which is the same HO that directly caused Perez' serious injury. In accordance with FOH S4tU2(c)5 a 5X factor in eMP computations should be applied to all 3 simHarly employed hazardous occupations order 10 vioJations. Reductio Factors fOH S4ID2(cX6) states: "Reduction factor is applied where only CL record keeping andlor Reg 3 hours violations (i.e., nonhazardous violations) occurred, • d where no death or serious injury occurred during any illegal employment,!!!! where none of the "aggravating factors" were applied, .•......••........." Reduction factors are not applicable in this instance as the minors were illegally employed in violation of HO 10, a serious injury occurred, and aggravating factors an: to be applied Given the gravity and pennanent impairment caused by the injury consultation with the MW Regional Office, the 'National OfrlCeBrach of Child Labor and Special Employment Procedure, the Regiona) Office of the Solicitor, and the National OffICe of the Solicitor has determined a CLEPP CMP of $40,000 should be computed based on a 35% impainnent rating as dictated by and Hour Memorandum No.2009-3. A review of the medical documentation corresponding .injwy was undertaken by Edw,in f. Richter III, MD at the behest of Wage and Hour's Na':~onal Officc. Richter's detennination was that the inJury constituted A36% impainnent rating. I For the three HO ) OvioJations corresponding to the 3 minors similarly employed wbisard computes $7,750 in CL CMPs for each violation. (523,250.00) callaghan & callaghan/Inc. Dba.:CoI,rd keeping v.iomtionsresulting from the empJ~yer~s failure to keep an ac-curate date ofbirtb as required by Reg S 16.2(a)(3) Wage and Hour Memor.andum No.2009-3 recommends a CMP of $350 for each violation occurring after 512012008. The totat amount of 13 Callaghan & Callaghan, Inc. Case FlleIl201S-1.63-14745 Dba.:,COI-Oean Whlsarril1758677 1925 3d'- St. NE canton, OH 44705 CMPs for the 4 minors is $1,400 TOTALCMPS: ViolatiOD Nam~rof Q!l VioIalio., "'_OIIot Total CMP Amooat I!!r VielatioD : HO lO:CLEPP Serious Injury (35% Impairment) 1 HO 10: Similarly Employed CL Record Keeping Reg 579.J(aX5) 3 $40,000.00 $7,750.00 4 $350.00 $40,000.00 $23,250.00 " ·$1,400.00 DISPOSITION On 4127/15 an initial conference was held at the establishment in Canton, Ohio. Representing the employer was the fmn's owner Ned R. Callaghan and the location's plant Charles Sne,ider, representing Wage and Hour was WHI and WHI WHls conducted an injtial conference, toured the facH empJ~yees, to the employer what records needed to be provided. At this meeting Ned Callaghan stated that the onJy minor that had worked for the finn in the Jast 2 years was the minor injured earlier in the month. Callaghan stated he had become aware that the injured individual was minor when employees from the company attempted to visit him in the hospital and subsequently discovered hisreaJ age. ~al'laglnan stated that the firm was not currently employing any workers under the age of 18. WID explained the general provisions uflbe FLSA. Additionally, WHI Banig revjewed child pUblication 101 with Callaghan. WIll expJained that if the fum employed any minors under the age of 18 at this faciJity they employed in violation of at least Hazardous Occupations Order 10. C IJaghan understood . • .• .. CoIJoghan & Callaghan, Inc. Dbo.:CoI-C1ean 19253'" St NE Cose ile'20JS-163-1474S WhlsardMl758671 On 712115 WHI contacted Jeff Stewart the Director of the Centro San Jose Immigrant Worker .Project OH. Stewart is represent in the injured minor in his worker COl1rlJ)ensalttOn claim. Stewart stated that an impa'rment ratio would not be detennined until izcd and the claim is finalized. Stewart stated that leg was not fully healed was also undergoing physiological treatment as a injury. He stated it wottUlJlilc.elv be many months before any impairment detenn' nation is made. WHI also contacted OSHA CO who is investigat'on the finn on behalfof slated that OSHA does not ratings. WID advised ADD Woodruff. that the NO has ted they will have the med' cal records corresponding to the injury exam' order to make an ,mpainnent rating determ .nation by a qualified medical professional. received a copy of an impainnent rating from Edwin F. Richter III, MD. Richter was cooltra(:ted NO and Richter 8 detenninat'on was that the injury constituted a 36% "mpainnent rating. WHI was advised by the < ItO that a fo1low up can was to be conducted prior scheduling a final with the employer. On 81711 S WHI was advised by ADD Woodruff that the NO was requesting an analysis of a pot nfaljoint relationship between Cal-Clean'semployees and Case Fanns be conducted. On 8114/15 ·WHI forwarded an analysis to ADD Woodruff. A conference call with the RO was scheduled 5 to discuss the matter. On 8114/15 ADD WoodrutTadvised WHI eMP amounts assessed for each violation. that the NO was requesting breakdown of CL forwarded the CL CMP amounts that same day_ o.n B/2Sn 5 Will forwarded the updated n rrative to ADD Woodruff. fmal conference was advised by ADD Woodrufftbat he could schedule and conduct a employer. The NO and RO had reviewed the oots joint employment lS CoJlaghan & Callaghan, Inc. Dba.:CDI·Clean 192531ft St NE Conlon, OH 44705 IIeN2015-163-14745 analysis and concurred that it was acceptable. Th t same day WHI requesting a conference be scheduled. emaHed Ned Callaghan Whisord#J758677 As of 9/21115 WHI had not rece· ved a response &om C IJaghan. Mil called Steve Callagh fl. Ned 's brother and mutual owner of the fi~ and Jeft a message requestin the employer contact him as soon as possibJe to schedule conference. was contacted by Callaghan and a con erence was scheduled for 9124/] S WHO's Akron Field 0 ICC. A fmal conference was held on 9124/15 at the Akron Field Office. Represenlting the arm's owner Steven Call,.gtum and representing W e and Hour was WHI WHI conducted a tonference and fonnally outlined the investi non's findings. Coverage, investigation, and the applicable provisions of the Act were discussed. explained to Callaghan that the investigation had found the finn b d it minors in violation 0 Hazanlous Occupations Order 10 (HO 10). WI-U explained in detail the scope of HO 10 and why it appJied to the minors the finn emllJlmled. Specifically, WHI e plained that the area where the mina performed there work for the finn was on the floor' and minors are prohibited from all operations perfonned on killing floors under HO 10. WHI explained to CalJaghan that the investiga ion had found one minor was seriously injured lJy employed in violation ofHO 10. f inally WHl explained to Callaghan that the finn had failed to accurately verify dates of birth for the 4 lUegal!ly employed m"nors and had faHed to maintain any documentation used for the purposes of verifying dates of birth for any of its employees at the location. WHI pointed out that time records provided by the finn often contained handwritten notes sugges1ting that the firm engage4 in employment prior to faking msteps to verify employees' dates of birth. wm explained this consisted in annotations stating things such as "needed extra people" for a hand written that were not found to correspond to any pay rccords, and in one the annotation needs to fill out an application" on a time sbeet in which the in question had hours worked. Callaghan explained that references to "needing extra peopJeu were when more than II employees were engaged to work on Sundays and did not correspond to additional employees but more employees working than nonnal on a In to the handwritten names, Callaghan stated that one of the is the firm '5 Regional manager and periodically works at different locations; he wouldn't have been Ijsted on the employee con1Bct infonn&tion OH however: Cal,Jaglhan not know why the names we~ handwritten not appear on CalJagll1an guessed that the employees only worked for Jess than a week so their names were handwritten and never updated on the timesheet template. He stated they were likely issued only a single check and therefore did 'Rot show up on the pay records ,provided or contact infonnation provided. He stated the contact infomlation provided cones,ponded to empJoyees who would have been issued a W. .2 and employees who worked for a few days likely would not have been issued a W-2. FinaJiy. regarding the annotation still needs to fiU out an application" CaUaghan stated that it "looked bad" and his Ion was that the employee was wotking prior to having any of his paper work processed or reviewed. Callaghan slated that anyone who worked for him needed to have filled out paperwork and p.rovided documents before commencing 16 . .. Callaghan & Collaghan, Inc. Case FIIe1l2015-163-14745 WhlsorrJlIJ758677 Dba.:CQI~Clean 19253f!' Sf. NE Canton, Of{ 44705 employment. He stated that beyond child Jabor and safety issues the company would assume a huge risk jf employees started working before their applications were processed and documents were verified since the employees would not be covered under workers compensation. Callaghan stated he would investigate what transpired and take steps to ensure no one ever commenced employmen,t for Cal-Clean prior to having their age verified. Callaghan stated he wanted to discuss the of one of the four minors. He stated that he believed the minor worked under the name • based on the dates stated that this employee wor~ed week or so in March of 20 15 and quit after being questioned about his age my manager _ Callaghan explained that this emp'loyee was hired by the General Manager Charles observed the employee working he believed him to be underage. Sneider; however when He stated employee he need to provide additional proof of.ageif he wanted to continue for the finn and the employee did not return. Callaghan had a photo ID of the employee whieh be showed to WHI on his tablet. WHI recognized the em:Dlo'vee the m' nor Yudber Roberto Furtbennore, showed WID copy of a check made out to for work with the WHI that the pay claimed to have worked when record be forwarded to him as well as the photo, ,also asked how the firm bad a photo ID for this employee when it had claimed that aU records were discarded after they were verI led. Callaghan stated '5 son w s cleaning out the Charles Sneider' s .office and found a box that contained around a J2 copies of photo IDs of employees hired by Sneider. Callaghan stated the record for happened to be there. Callaghan reiterated that the fum t s policy was to destroy verifl documents and it was just by chance that this record had been retained. WHI issued Callaghan a hard copy of form WH-l 03 CL Notice to Emp.loyer. WIn provided Callaghan with a copy CL bulJetin 101 and then reviewed it with Callaghan in detail~ reviewing any potential HOs as well as the regulation 3 standards. In regards to the vioJations, Callaghan agreed to future compliance by no longer employing anyone under the age of 18 in any capacity. Callaghan ~5 explanation for the violations is that his finned had simply failed to prevent minors from being hired. Callaghan explained that given that the 'Workers in question presented false documents it makes it difftcult to determine that they were underage; however" he stated he failed, his company failed, and he is embarrassed and ashamed that the employment of the·minors occurred. He was adamant that there was no willful intention at the corporate level to hire minors and that he is completely opposed to minors working in the flKiility regardless of whether or not it's pennitted under law. Callaghan stated that instead of hiring a General Manager from within CaJ-Clean they hired someone from outside of the com,pany (Charles Sneider, the OM. was previously emp.loyed ~y Case Farms directly on thejr sanitation crew prior to C I-Clean taking over sanitation for the plant) and the General Manager had failed in h'is duties. 'CaUaghan stated he believed the Gene.r.al Manager was mote conce.med with filling positions and finding workers than ensuring worker safety .and making sure workers were of I~gal .,age; CaJJaghan stated that before the acc.ident he didn't think that sometbjngJike thiscouJd happen and now he realizes he failed to address this potential problem before it was too late. 17 CoIJaghan & Callaghanl Inc. cas~ 1~#20l5-J63-j474S Dba.:Cal-Oean 1925 3rf' St. NE Canton, OH 44705 WhisardN1758617 Callaghan explained that the company is taking steps to ensure this doesn't happen again. He stated after the accident anyone at the company who looked like they could potentially be under the age of 18 was asked to present their documents again for review and if needed prav,ide additional records for age verifications. Callaghan stated that tbisresulted in workers not returning to work and he believes has eliminated any potential minors from the finn's workforce. Callaghan stated that since the accident he had pe.rsonally been to the plant every other week a minimum of2 days and when he wasn't there he had his regional manager, Leonardo Avila, at the location overseeing the operation and making sure no vioJations of CL standards and OSHA standards were occurring. FinalJy, Callaghan stated that he had sought out and hired a bi-1ingual native Guatemalan General Manager to take over operations at the location. On an Enterprise level Callaghan stated that all General Managers are being instructed to make sure beyond any doubt that all of their workers arc above legal age and in any instances where workers ges are questionable and the workers cannot provide satisfactory documentation to verify their agesworkers have been dismissed. Furthennore, aU managers h ve been advised if they have even the slightest doubt that an applicant could be und r the age of 18 for any reason at aU that employee is not to be hired. explained to Callaghan the likelihood that CL CMPs would be assessed for the explained the possibility of a press release. Callaghan understood. WHI encouraged Callaghan to contact him at any time with questions regarding FLSA COl1npt:iam::e or compliance with any of the statutes enforced by Wage and Hour. Callaghan has been provided with WHI direct phone number as well as WHI email address. On 9/251.1 5 Callaghan called back 10 explain the reason needs to fill out an application" was band written on the time sheet is because the employee in question still needed to camp'lete his application; however, the finn had already verified any documents prior to him commencing employment. Callaghan stated begojng to fax over .records explaining the annotations that suggested employees commenced work· to their 'Verified andwouJd fax a copy of the record who worked under the name CASE FILE EXHIBITS 1 Paw Picker Make: Berry Plumbing Equipment Model: BEP 4~10 Serial: 2174 $1 ?awn 532 Glblet Chiller Auger Make: Paul Mueller Company, Vessel Serial: 153603 Motor that drives Glblet Chiller Auger Make: Leeson?Wash Guard Model: C26T17VC 120 4 wmwpimg yaw? Paw Line (Machine with Blue Conveyor adjacent to Giblet Chiller) Make: Berry Plumbing Model: BPGC0001 Serial: 2180 5wa?? J. dy?w? ,w wmiw . at15? war?- ..I 5 mm 4 lemf? ?gvgm WW \i Tote Cleaning Area Debone Area and Debone Line w, .i 2% 3331?wa Hoses and Connections n92, WW g, s? 45 .n (9.44% xv w? 355? Xx ?53 15; t; v?