Subpart C
Under 1921.12(a) the counsel supporting the complaint normally proceeds first, and the Assistant Solicitor of Labor in charge of trial litigation has the burden of proof. The burden must be met by a preponderance of the evidence, meaning the supporting party must show that the facts are more likely true than not. See 1921.12(a) and the general 1921 overview.
Under 1921.12(b)(1) witness testimony must be given under oath or affirmation administered by the hearing examiner, and witnesses are subject to cross-examination as needed to fully disclose the facts. The hearing examiner may administer the oath, and cross-examination can be used to test credibility and completeness. See 1921.12(b)(1).
Under 1921.12(b)(1) the hearing examiner shall exclude evidence that is immaterial, irrelevant, or unduly repetitious. This means evidence that does not help prove a fact, is unrelated to the issues, or merely repeats what already is in the record can be kept out to keep the hearing focused and efficient. See 1921.12(b)(1).
Under 1921.12(b)(2) a party must state the grounds of any objection briefly at the time the ruling is sought, because only objections made before the hearing examiner may be relied on later in the proceeding. The hearing examiner’s rulings on objections will be entered into the record. See 1921.12(b)(2).
Under 1921.12(b)(3) you do not need to make a formal exception to an adverse ruling. The rule removes the formal exception requirement, so simply preserving the objection on the record as required under 1921.12(b)(2) is sufficient. See 1921.12(b)(3).
Under 1921.12(c) the hearing examiner may take official notice of traditional matters of judicial notice and facts about which the Department is presumed to be expert. Parties must be given adequate notice, either at the hearing or in the examiner’s decision, of the matters so noticed and must have an adequate opportunity to show contrary evidence. This protects a party’s right to respond before the notice becomes binding. See 1921.12(c).
Under 1921.12(d) the hearing examiner may allow oral argument, but the examiner can limit or shorten that argument as necessary to move the case along. A party may request oral argument, but the examiner has discretion to permit and to set reasonable limits for expeditious disposition. See 1921.12(d).
Under 1921.12(e) hearings must be stenographically reported, and parties may obtain copies of the transcript by submitting a written application to the reporter and paying the fees set in the agreement between the Assistant Secretary and the reporter. Requests should be in writing and include payment as required. See 1921.12(e).
Under 1921.12(a) "preponderance of the evidence" requires the Assistant Solicitor to show that the contested facts are more likely true than not—that the evidence tips the scale just over 50% in favor of the complaint. This is the standard the Assistant Solicitor must satisfy when carrying the burden of proof. See 1921.12(a).
Under 1921.12(b)(2) a party should briefly state the legal or factual grounds for the objection at the time the ruling is sought so the objection is properly preserved for the record. The hearing examiner will rule and that ruling will be part of the official record. See 1921.12(b)(2).
Under 1921.12(b)(1) the hearing examiner may limit the scope of examination or cross-examination to prevent immaterial, irrelevant, or unduly repetitious questioning, while still allowing sufficient examination for a full and true disclosure of the facts. Limits are used to keep testimony focused and the hearing efficient. See 1921.12(b)(1).
Under 1921.12(c) when the hearing examiner takes official notice of a fact, the parties must be given adequate notice either at the hearing or by reference in the hearing examiner’s decision, and the parties must be given a fair opportunity to present evidence showing the noticed fact is incorrect. This ensures due process before the noticed fact is treated as established. See 1921.12(c).
Under 1921.12(e) the fees for obtaining a hearing transcript are set by the agreement between the Assistant Secretary and the reporter, and parties must pay those agreed fees when they file a written application for the transcript. To learn the specific fee amount, request it from the reporter or the Assistant Secretary’s office as reflected in the standing agreement. See 1921.12(e).
Under 1921.12(b)(3) the practical effect is that a party does not need to take a formal exception to an adverse ruling to preserve error; instead, a timely objection that is placed on the record under 1921.12(b)(2) will preserve the issue for review. This simplifies procedure and focuses on whether the objection was properly made and recorded. See 1921.12(b)(3).
Under 1921.12(d) a party should request oral argument from the hearing examiner—either at the hearing or in writing—keeping in mind the examiner may permit it and may set limits to keep the proceeding efficient. Expect the examiner to decide whether to allow argument and to impose any time or scope limits necessary for expeditious disposition. See 1921.12(d).
Under 1921.12(b)(1) the hearing examiner balances these interests by allowing necessary testimony and cross-examination to uncover the facts while excluding testimony that is immaterial, irrelevant, or unduly repetitious, thereby promoting both fairness and efficiency. The examiner exercises discretion to permit probing questions but can cut off repetitive or unrelated matters. See 1921.12(b)(1).