In 2010, the Department of Labor (DOL) reiterated its commitment to the aggressive enforcement of federal employment laws for which it is responsible, such as the Fair Labor Standards Act (FLSA), through increased staffing and various employee protection initiatives. During the past year the DOL hired more than 200 additional field investigators in order to buttress its FLSA enforcement efforts.
The DOL is in the process of writing and reviewing dozens of employment regulations. For example, the 2010 Spring Regulatory Agenda disclosed the DOL’s intent to update FLSA record keeping requirements “to foster openness and transparency, increase the awareness among workers, and to encourage greater compliance by employers.” The DOL is considering proposed rules requiring covered employers to notify workers of their rights under the FLSA and to provide workers with information regarding hours worked and wage computations. Employers that seek to exclude workers from FLSA coverage would be required to perform a classification analysis, disclose the analysis to the affected worker, and retain the analysis for review by DOL enforcement personnel who might request it. The proposal will also address the burden of proof when employers fail to comply with such recordkeeping and notice requirements.
It is the DOL’s stated position that employees have the right to know the employer’s analysis with respect to FLSA exempt or non-exempt requirements, as well as the basis for treating an individual as an independent contractor. Other FLSA issues under scrutiny in 2010 that are important to non-profit employers include timekeeping/rounding off policies, and hours of work issues related to meal periods, break times, travel time, and use of Blackberry’s, PDAs, and mobile devices by non-exempt employees during off-duty time.
Also in 2010, the DOL adopted a revised policy of issuing more general “Administrator Interpretation” letters to discuss legal issues. These letters will be issued at DOL’s discretion and have replaced the DOL’s long-standing practice of issuing fact-specific “opinion letters” in response to employers’ specific requests for agency guidance. For example, the DOL recently used an administrator’s interpretation letter to “clarify” the definitions of “son” and “daughter” under the Family and Medical Leave Act.
Finally, the DOL recently announced an initiative in conjunction with the American Bar Association (ABA) to help give workers access to private legal services to enforce their rights under the FLSA and FMLA. The DOL will establish a toll-free telephone number for workers to contact an experienced lawyer in the worker’s area through an ABA referral service.