Employers Expected to Face Additional Pressure from Department of Labor

It seems like everywhere you look there is some mention of the U.S. Department of Labor (DOL) cracking down in one way or another on businesses. Statistics indicate that there is much increased activity in DOL audits over the last few years, which should come as no surprise. In the DOL 2011 Strategic Plan Fiscal Years 2006 – 2011 the department listed four major goals, which are:

• A Prepared Workforce
• A Competitive Workforce
• Safe and Secure Workplaces
• Strengthened Economic Protections

According to the Strategic Plan, the third goal, Safe and Secure Workplaces “focuses on ensuring that workplaces are safe, healthful, and fair; providing workers with the wages due to them; providing equal opportunity; and protecting veterans’ employee and reemployment rights.” It is this area that prompts the majority of DOL audits of employers.

The newly appointed Secretary of Labor, Hilda Solis, issued a statement on March 24, 2009 that the DOL is renewing its efforts to enforce labor laws across the country. With the addition of 250 field investigators provided to the DOL under the American Recovery and Reinvestment Act, businesses can be assured of increased audits.

In is important to understand that the DOL is quite a large organization with far reaching regulatory authority. The DOL has 27 divisions that each has their own function. A few of the divisions that are most familiar to private employees are:

• Employment Standards Administration (ESA), which includes:
  - Wage & Hour Division (WHD)
• Employee & Benefits Security Administration (EBSA)
• Occupational Safety & Health Administration (OSHA)

In 2008 the WHD recovered more than $185 million in back wages for 228,000 employees. In addition, the agency assessed $9.9 million in civil monetary penalties and concluded 28,242 compliance actions. Including the 2008 figures, the 8 year cumulative total of back wages collected by the agency was $1.4 billion dollars. (Please click here for US Department of Labor 2008 Fiscal Year Report)

Audits are generally triggered either when a current or former employee files a complaint with the DOL or when the DOL targets a specific industry for investigation. It is a common practice of the DOL to target a variety of low-wage industries including day care, agriculture, janitorial services, the garment industry, healthcare, the hotel and motel industries, restaurants, and temporary help. These industries generally have vulnerable and often immigrant workforces, and a history of chronic violations.

Keeping in mind the many arms of the DOL and its numerous divisions, there are many areas that may be audited and some of the main areas of employee complaints (that result in an audit) are listed below:

• Misclassifying employees as exempt (Exempt vs. Non-Exempt status)
• Independent Contractor Status
• Minimum Wage Violations
• Child Labor Violations
• Overtime Issues
• Family & Medical Leave Act (FMLA) Violations
• Improper deduction(s) from wages
• Other Wage Issues such as: Bonus, Incentive, On-Call, Paid Time Off issues
• Timely remittance of retirement plan deferrals withheld through payroll deduction
• Fair Pay Issues

In addition, many states have a state agency equivalent to the DOL. For example, in California there is the Division of Labor Standards Enforcement, which can also audit CA employers for the same items as the DOL. It is imperative to know your specific state’s requirements in addition to federal regulations. In California, employers should also ensure they are complying with meal and rest break requirements, properly recording meal breaks and the employees’ time worked, properly paying overtime, and reimbursing employees for all business related expenses.

Liability for violation of the wage and hour laws does not require evidence of bad intent or unlawful motive by an employer. The performance of the employee is also rarely an issue, making the employer’s exposure fairly straightforward in most cases. 

If the DOL audits your company, a representative will visit your facility to conduct interviews, make sure the required posters are hung, and possibly examine the time clocks to determine whether your company is in compliance with the Fair Labor Standards Act. DOL will then review up to 3 years' worth of your wage-and-hour records and investigate your wage-and-hour practices to determine whether you have paid your employees the proper amount of overtime. This will include a review of your pay records, so you must make sure the records are accurate and organized.

Employers need to be proactive about complying with these complex wage and hour laws. If cost is a concern, complete an in-house audit and then have an attorney double check the policies and practices. It will cost a lot more to contact an attorney after the DOL or state agency is in your workplace or the lawsuit has already been filed.

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