Albert Bell, Jr., Attorney at Law with Ward and Smith, P.A., advised participants in CAI’s recent members-only Ask the Experts session on the U.S. Department of Labor’s (USDOL) stepped-up enforcement and pro-labor approach, and highlighted areas that can present problems for employers.
- Increased collections for wage and hour violations – In 2009, the government collected more than $172 million in back wages for 219,560 employees.
- Increase in wage and hour investigators – There was an increase of 250 investigators in 2010, and USDOL is projecting that they will have 1,000 investigators by the end of 2011.
- Focus on employees – Protecting the rights of employees is the priority for USDOL. In December 2010, it established a partnership with the American Bar Association to provide a toll-free number to employees to refer them to a private attorney in their area whom they may contact to discuss a complaint. For more information, see http://bit.ly/dol-aba.
- USDOL is less helpful to employers – Employers used to be able to write letters to the USDOL explaining a situation and asking for guidance. The USDOL would then respond with an Opinion Letter to the employer but would post the Opinion Letter anonymously on the Web. These Opinion Letters were helpful to employers in understanding USDOL interpretations of laws. In 2010, the USDOL started issuing Administrator Interpretations and eliminated the Opinion Letter process. The Administrator Interpretations address general interpretation of the law rather than specific situations. The USDOL also withdrew some prior Opinion Letters.
- Hot Fair Labor Standards Act (FLSA) issues – Rounding of time, and donning and doffing are areas that plantiffs’ attorneys are focusing on because of the number of employees affected and the resulting potential gold mine.
- Strategy for 2011-2016 – The emphasis is on Plan/Prevent/Protect. USDOL plans to propose regulations requiring employers to put systems in place to address risks, hazards and inequities in their workplaces and correct deficiencies to be compliant with the FLSA. It is expected that once the USDOL outlines the regulations for this process, they will conduct audits to see that employers have the systems in place, rather than auditing just for specific violations of the FLSA.
- Proposed recordkeeping rule in 2011 – USDOL intends to publish a rule in 2011 requiring employers to notify employees of their rights under FLSA and how their hours and pay are determined.
- Employees you don’t know you have – Employers should revisit independent contractor classifications to make sure they truly are independent contractors and not employees. To determine whether someone is an independent contractor or employee the USDOL considers who has control, the opportunity for profit and loss, investment, skill and permanency of the relationship.
For additional information on the current initiatives of the USDOL, please call a member of CAI’s Advice and Counsel team at (919) 878-9222 or (336) 668-7746.