US Department of Labor: It’s War! And Employers Are The Enemy

by Michael Haberman on April 6, 2010 · 2 comments


In a press release issued April 1 (yes April Fools Day, but this is no joke) Secretary of Labor Hilda Solis announced the release of the “We Can Help Program.” If you were a trusting soul you might think this was a program to help employers correct wage and hour mistakes so that workers would be properly compensated. The FLSA is not an easy law to understand and deal with. After all there over 700 pages of regulatory text and over 50 statutory exemptions. So what would be better than a program to help employers to better understand this law. Well if this is what you think then you are the April FOOL.

The “We Can Help Program” is “being spearheaded by the department’s Wage and Hour Division, will help connect America’s most vulnerable and low-wage workers with the broad array of services offered by the Department of Labor. The campaign will place a special focus on reaching employees in such industries as construction, janitorial work, hotel/motel services, food services and home health care. It also will address such topics as rights in the workplace and how to file a complaint with the Wage and Hour Division to recover wages owed.”  (My emphasis.) The AFL-CIO touted this announcement as a war on “wage theft” and Solis reiterated this by saying “If someone is stealing your wages, you can and should call the Department of Labor….We can help, and we will help. If you work in this country, you are protected by our laws. And you can count on the U.S. Department of Labor to see to it that those protections work for you.” Employees are going to be “helped” to identify you as a thief and be taught how to report you. Luck you.

 

As further evidence that the USDOL is not going to be a friend of the American employer they have announced, according to Seyfarth Shaw attorney, and former Deputy and Acting Administrator of the USDOL, Alexander J. Passantino, that NO MORE opinion letters will issued. So an employer cannot ask for the USDOL to rule on a position to determine if it is exempt or not. Additionally, another 293 Wage & Hour investigators have been hired and trained and another 90 have been requested. A Chief Enforcement Officer has been appointed to head this effort up.
 
Additionaly actions that have or will occur include:

  • Previous investigations will prompt more investigation
  • An employers investigation history will be available on the website of the USDOL
  • If  you accepted any stimulus money you will be investigated or if you are a subcontractor to someone who accepted stimulur money or is subject to Davis Bacon you will be subject to investigation.
  • Information about investigations may be shared with other Federal agencies, such as the IRS and Department of Homeland Security and also with state department of labors.

One of the major outcomes of the second bullet is that personal injury attorneys these days are getting into the Wage & Hour business. They are bringing lawsuits on behalf of employees or ex-employees. They advertize on daytime TV these days. With the records of an investigation against you now being published on the USDOL website they now have identified targets and have been known to seek out your ex-employees or even your current employees. They are even actively soliciting the business when someone calls into them about other lawsuits, according to Seyfarth Shaw attorney, Louisa Johnson.

The USDOL has also announced increased OSHA efforts targeting employers and the NLRB will also step up efforts detrimental to businesses. Both of these issues will be discussed later in the week.

The net result of this new world order is that a BIG  target has been painted on the back of businesses and it is going to require you to be vigilant and proactive.

Tomorrow I will post on some of the Wage & Hour areas you need to pay particular attention to and what you should be looking for and doing with them. In the meantime, please pass this blog post around to other HR folks you know and in particular to any small businesses you know as well. Small business is particulary vunlerable just because they lack HR resources. Until tomorrow…..

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