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

*Site source: http://www.dol.gov/whd/statistics/.

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.

Questions? Contact Walter J. Liszka, Managing Shareholder of Wessels Sherman's Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com