Sec. 224.13 - Investigation and enforcement.
(a) Report of violations. An employee or other person may report to the department any suspected violation of this chapter. Such reports may be filed only if the matter complained of occurred after the effective date of this chapter and within three (3) years prior to filing the report.
(b) Investigation process. The department has the authority to investigate possible violations of this chapter whenever it has reason to believe that any violation of this chapter has occurred, including but not limited to when the department has received a report of a suspected violation or when circumstances show that violations are likely to occur within a class of businesses because the workforce contains a significant number of employees who are vulnerable to violations of this chapter or the workforce is unlikely to volunteer information regarding such violations.
(1) Notice of investigation. To pursue a violation of this chapter, the director must serve upon an employer via U.S. mail a notice of investigation setting forth the allegations. The notice of investigation must be accompanied by a request for a written position statement and may include a request for records or other information. The notice must also inform the employer that retaliation for claiming rights under this chapter is a violation of this chapter and a basis for imposing monetary damages on an employer. Within seven (7) days of the notice of investigation, an employer must post or otherwise notify its employees that the department is conducting an investigation, using a form provided by the department and displaying it on-site, in a conspicuous and accessible location. The notice must be in English and in the primary language of the employee (s) at the particular workplace. If display of the form is not feasible, including situations when the employee works remotely or does not have a regular workplace, employers may provide the form on an individual basis in the employee's primary language in a physical or electronic format that is reasonably conspicuous and accessible.
(2) An employer's position and response to any request for records must be provided to the department as provided in the department's rules. An employer's failure to provide a position statement or to provide a full response to a request for records following the issuance of an administrative search warrant for such records, within thirty (30) days of the issuance of the administrative search warrant creates a rebuttable presumption of a violation of this chapter. An employer that fails to respond to a request for records following the issuance of an administrative search warrant for such records may not records not provided to the department at any hearing held under this chapter, unless the employer can show they had good cause to withhold the records.
(3) Investigations must be conducted in an objective and impartial manner.
(4) The department may consider any statement of position or evidence with respect to the alleged violation which the complainant or employer wishes to submit.
(5) The department may interview employees in private regarding a matter under investigation.
(6) In order to define the issues, determine which elements are undisputed, resolve those issues that can be resolved, and afford an opportunity to discuss or negotiate settlement during investigation the department may require a fact-finding conference or participation in another process, including but not limited to an investigative interview with the complainant, witnesses, or the employer and any of their agents.
(c) Director determination. Except when there is an agreed upon settlement, the director must issue either a written notice of determination of violation or a written notice of determination of no violation. In the case of a determination of no violation, the department must state the reason for determining that no violation exists. Every notice must be issued to the employer and the complainant who filed the suspected violation report. The complainant may, within twenty-one (21) days, file a request for reconsideration of a determination of no violation with the director. The director must provide a written response on the reconsideration within ten (10) days of receiving the request from the complainant.
(d) An employee or other person who has reported a violation of this chapter may:
(1) Bring a civil action in district court within forty-five (45) days after receipt of a notice of determination of no violation of this chapter.
(2) Bring a civil action in district court within forty-five (45) days upon notice that the director has reaffirmed a determination of no violation of this chapter if the complainant requested reconsideration.
(3) For purposes of this clauses (1) and (2), notice is presumed to be five (5) days from the date of service by mail of the written notice.
(e) Contents of notice of determination of violation. If the department determines that cause exists to believe that an employer has failed to pay the city minimum wage, the department may issue a notice of determination of violation for failure to pay the city minimum wage to the employer. The notice must advise the employer of the following:
(1) That the city believes the employer has failed to pay the city minimum wage;
(2) The basis for the city's belief;
(3) The amount of restitution owed and penalty imposed;
(4) That the employer is entitled to a hearing before any restitution or penalty is imposed; and
(5) That the employer can choose to admit or deny the allegations.
(i) If the employer wishes to admit the allegations but contest the proposed restitution or penalty, the employer may request a hearing before the city council regarding the proposed restitution or, if applicable, penalty.
(ii) If the employer wishes to deny the allegations, then the employer must request a hearing before a hearing examiner.
(iii) Failure to respond in writing within fifteen (15) working days of the notice of determination of violation is deemed an admission of the allegations and acceptance of the proposed restitution and, if applicable, penalty.
(f) Hearing before hearing examiner when employer denies allegations.
(1) The hearing examiner is responsible for hearing all evidence as may be presented on behalf of the city and the employer. Both parties must be provided an opportunity to present evidence and argument as well as meet adverse testimony or evidence by reasonable cross-examination and rebuttal evidence. The hearing examiner may in their discretion permit other interested persons the opportunity to present testimony or evidence or otherwise participate in such hearing. Following the hearing, the hearing examiner must present to the city council written findings of fact and conclusions of law together with a recommendation regarding the appropriate penalty, including restitution.
(2) Record; evidence. The hearing examiner is responsible for receiving and keeping record of such proceedings, including testimony and exhibits, and may receive and give weight to evidence, including hearsay evidence, which possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs.
(3) The City must prove that the employer failed to pay the city minimum wage by a preponderance of the evidence.
(g) City council determination.
(1) The city council must consider the evidence contained in the record, the hearing examiner's recommended findings of fact and conclusions, and must not consider any factual testimony not previously submitted to and considered by the hearing examiner. The city council may accept, reject or modify the findings, conclusions and recommendations of the hearing examiner.
(2) City council action. The city council must determine whether the employer has violated this chapter and by resolution determine whether to adopt all or part of the findings, conclusions and recommendations of the hearing examiner.
(3) Imposition of costs. The city council may impose upon any employer some or all of the costs of a contested hearing before an independent hearing examiner. The costs of a contested hearing include, but are not limited to, the costs of the hearing examiner, stenographic and recording costs, copying costs, City staff and attorney time for which adequate records have been kept, rental of rooms and equipment necessary for the hearing, and the cost of expert witnesses. The city council may impose all or part of such costs in any given case if the position, claim or defense of the employer was frivolous, arbitrary or capricious, made in bad faith, or made for the purpose of delay or harassment.
(h) Failure to exhaust administrative remedies. If there is no appeal of the director's determination of a violation or no violation, that determination must constitute the city's final decision. The failure to appeal the director's determination by either the employer or complainant must constitute a failure to exhaust administrative remedies, which must serve as a complete defense to any petition or claim regarding the director's determination.
(i) Relief and administrative fines. If an employer is found to have violated this chapter, the director may order the employer to cease and desist from engaging in the violative practice and may order any appropriate relief, including, but not limited to:
(1) Reinstatement and back pay, for any violation.
(2) For the first violation, an administrative fine of five hundred dollars ($500.00).
(3) For the second and subsequent violations, an administrative fine of one thousand dollars ($1,000.00).
(4) In addition to any administrative fine, for the first violation, the payment of any wages unlawfully withheld, and the payment of an additional sum as liquidated damages to each employee whose rights under this chapter were violated. The dollar amount of wages withheld from the employee, or two hundred fifty dollars ($250.00), whichever amount is greater, may be included as liquidated damages to be paid to the employee.
(5) In addition to any administrative fine, for a second violation by an employer against the same employee, in addition to the payment of any wages unlawfully withheld, the director shall assess liquidated damages in an additional amount and order the employer to pay to the employee the dollar value of the wages unlawfully withheld multiplied by two (2), or two hundred fifty dollars ($250.00), whichever amount is greater. In addition thereto, for any second violation by an employer, the director shall assess an administrative fine, payable to the city, up to one thousand dollars ($1,000.00).
(6) In addition to the above, for a third or any subsequent violations against the same employee, the director shall assess liquidated damages, payable to the employee, up to one thousand dollars ($1,000.00), or an amount equal to ten (10) percent of the total amount of unpaid wages, whichever is greater.
(7) An administrative fine of up to one thousand dollars ($1,000.00), payable to the employee, for each violation of section 224.14 of this chapter.
(8) An administrative fine of up to one thousand dollars ($1,000.00), payable to the city, for each violation of sections 224.09, and 224.10, 224.14 of this chapter.
(Ord. No. 25-55, § 2, 10-8-25)