Tuesday, December 9, 2014

Department of Labor Still Very Active

December 2014
By: Walter J. Liszka, Esq.

In October, 2014, the United States Department of Labor issued its fiscal year statistics, covering numerous Fiscal Years, in various areas of its responsibility and enforcement (Fair Labor Standards Act; Child Labor; Family Medical and Leave Act Enforcement). It is very interesting to note that these statistics clearly confirm a major increase in wage and hour activities as conducted by the Department of Labor with increases in both the amount of recovered back wages and the time spent by agents on enforcement. These increased enforcement efforts have reached “record high levels” in 2013-2014 with more than 8,000 Federal Labor Standards Act cases being filed between April 1, 2013 and March 31, 2014, which is a five (5%) percent jump from the previous year. As well, since Fiscal 2000, there has been a 438% increase in federal wage and hour lawsuits. These enforcement and trend statistics are a clear indication to employers that they must use great care and their best practices to ensure compliance with wage and hour laws.

As part of this paper, you will find the actual statistics below for the wage and hour divisions identified fiscal years for all acts, Family Medical and Leave Act Enforcement and Child Labor Enforcement. These statistics, in and of themselves, are extremely telling:


All Acts:
WHD Enforcement Statistics – All Acts
FY 2013
FY 2012
FY 2011
FY 2010
FY 2009
FY 2008
FY 2007
FY 2006
Back Wages
$249,954,412
$280,697,546
$224,844,870
$176,005,043
$172,615,125
$185,287,827
$220,613,703
$171,955,533
Employees Receiving Back Wages
269,250
308,846
275,472
209,814
219,759
228,645
341,624
246,874
Complaints Registered
25,628
25,420
27,112
31,824
26,311
23,845
24,950
26,256
Enforcement Hours
1,339,029
1,377,441
1,213,182
1,066,188
879,626
882,419
899,406
951,971
Average Days to Resolve Complaint
110
145
177
142
101
97
97
93
Concluded Cases
33,146
34,139
33,295
26,486
24,922
28,242
30,467
31,987


WHD Continues Strong Child Labor Enforcement
Child Labor Enforcement Statistics
FY 2013
FY 2012
FY 2011
FY 2010
FY 2009
FY 2008
FY 2007
FY 2006
FY 2005
FY 2004
FY 2003
FY 2002
FY 2001
Directed Child Labor Cases
233
317
464
591
1,063
1,269
1,285
952
1,406
2,155
2,031
2,105
2,021
Cases With Child Labor Violations
704
749
729
684
887
1,129
1,249
1,083
1,129
1,616
1,648
1,936
2,103
Minors Employed In Violation
1,393
1,614
1,873
3,333
3,448
4,734
4,672
3,723
3,703
5,840
7,228
9,690
9,918
Minors Per Case
2.0
2.2
2.6
4.9
3.9
4.2
3.7
3.4
3.3
3.6
4.4
5
4.7
Cases With HO Violations
276
334
366
308
394
466
410
361
396
459
654
747
876
Minors Employed In Violation of HOs
520
682
949
863
1,183
1,617
1,000
994
1,091
1,087
1,449
1,710
2,060
           

Family And Medical Leave Act Enforcement
FMLA Enforcement Statistics
FY 2013
FY 2012
FY 2011
FY 2010
FY 2009
FY 2008
FY 2007
FY 2006
FY 2005
FY 2004
FY 2003
FY 2002
FY 2001
FY 2000
FY 1999
FY 1998
FY 1997
Number of Complaint Cases
1,634
1,723
2,132
2,094
1,841
1,889
1,983
2,161
2,784
3,350
3,565
3,501
2,790
2,833
2,912
3,795
2,670
Percent of No-Violation Cases
54%
55%
58%
58%
49%
47%
45%
49%
51%
55%
54%
50%
48%
44%
39%
38%
44%


Nature of Complaint
FMLA Enforcement Statistics
FY 2013
FY 2012
FY 2011
FY 2010
FY 2009
FY 2008
FY 2007
FY 2006
FY 2005
FY 2004
FY 2003
FY 2002
FY 2001
FY 2000
FY 1999
FY 1998
FY 1997
Refusal to Grant FMLA Leave
319
340
484
468
412
416
459
522
647
697
815
741
629
575
589
716
699
Refusal to Restore to Equivalent Position
212
212
233
230
239
220
242
261
328
369
370
400
360
402
1,505
1,841
1,276
Termination
673
749
890
913
763
757
764
870
1,132
1,473
1,567
1,503
1,123
1,159
n/a
n/a
n/a
Failure to Maintain Health Benefits
20
33
40
36
33
39
29
31
50
48
46
71
62
45
49
91
77
Discrimination
410
389
485
447
394
457
489
477
627
763
767
786
616
652
642
849
468



During Fiscal Year 2013, the recovery of approximately 250 million dollars is approximately 78 million dollars more than recovered in Fiscal Year 2006 ($249, 954,412 dollars – Fiscal Year 2013 versus $171,955,533 dollars – Fiscal Year 2006).
  • With the addition of approximately 300 new investigators over the last two (2) years, the hours spent by wage and hour investigators on enforcement totaled 1.339 million in Fiscal 2013 as compared to 880,000 hours in 2009 and 970 hour when compared to Fiscal 2006 – a fairly substantial increase.

It is also interesting to take note that the Department of Labor Wage and Hour Division has published the Final Rule establishing the standards and procedures necessary to implement Executive Order 13658 – establishing a Minimum Wage for Federal Contractors. This Executive Order requires the implementation of a minimum wage of $10.10 per hour for all Federal Contractors performing works on contracts agreed to on or after January 1, 2015. Also for any federal contractors, the Department of Labor will play a major role in preparing the regulation and guidance for the implementation of Executive Order 13673 – Fair Pay and Safe Work Places. Of note, this new Executive Order calls for the Department of Labor to create and impose arbitration limits for claims arising out of Title VII Civil Rights Act of 1964 and sexual harassment tort claims for federal contractors. This order also will require greater transparency in pay information and disclosure of labor law violations for the past three (3) years for any Federal Contractor.

Going forward, whether federal contractors or not, all employers should do the following:
  1. Maintain proper pay records and post appropriate notices for compliance with the Fair Labor Standards Act and any requirements under Executive Orders/Federal Contractor requirements.
  2. Be clear and consistent with regards to determining who is an “employee” and who is an “independent contractor”. Make absolutely certain that if you are employing “independent contractors” that you clearly define them in any written documents as “independent contractors” and do not use the term “employee” in any of these agreements. Provide “independent contractors” with written vendor agreements that clearly establish an independent contractor relationship.
  3. Train personnel and management to understand the different requirements of various labor laws and specifically train with regard to overtime regulations and pay.
  4. Conduct internal audits to establish that all labor laws and pay requirements are being observed.
  5. Keep an update of any and all changes in laws in how they impact your business.