After a long hiatus, the Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) released its updated enforcement statistics for fiscal years (FY) 2009 through 2013. The federal government’s fiscal year runs from October 1 through September 30, and the statistics are updated through the 2013 fiscal year that ended on September 30, 2013. In the WHD’s “welcome” message to its statistics web page, Fiscal Year Statistics for WHD, the agency noted that it was providing this enforcement information in the interest of accountability transparency and responsiveness. The agency failed to acknowledge that the previous administration had released enforcement data for FY 2001 through FY 2008, but the current administration had ceased to do so until the WHD released this data.
So, just what do the numbers tell us? First, they confirm what many of us have been saying—enforcement activity is up; now, we have an idea of just how much enforcement has increased. Here are some numbers that illustrate this development:
The total back wages recovered have increased. The WHD recovered approximately $250 million in back wages for FY 2013, which is down from the approximately $280 million recovered in FY 2012. The 2013 statistic is an increase, however, from the approximately $173 million in FY 2009 and the approximately $166 million recovered in FY 2005. Prior to FY 2012, the most back wages recovered is $220.6 million in fiscal year 2007. Enforcement hours are up. With the addition of some 275 to 300 new investigators, the hours that the WHD spent on enforcement totaled 1.339 million in FY 2013, which is down from 1.377 million in FY 2012 and compares with approximately 880 thousand hours in FY 2009 and 970 thousand hours in FY 2005. The number of concluded cases has been fairly constant. The WHD concluded 33,146 cases in FY 2013 versus 34,139 in FY 2012 as compared with 24,922 in FY 2009 and 34,858 in FY 2005.
Fair Labor Standards Act Cases
In cases involving the Fair Labor Standards Act (FLSA), the great majority of back wages recovered have been for overtime violations while the breakdown of cases with minimum wage or overtime violations, or both, are fairly split.
In FY 2013, overtime back wages totaled approximately $130 million, which is down from approximately $148 million in FY 2012 and compares with approximately $119 million in fiscal year 2009. The back wages recovered for minimum wage violations totaled approximately $38.5 million, which is an increase from the approximately $35.3 million collected in FY 2012 and compares with the approximately $13.9 million collected in FY 2009.
The WHD also provides some statistical information about its enforcement activities in nine low-wage industries that the WHD had targeted. These industries include: agriculture, day care, restaurants, garment manufacturing, guard services, health care, hotels and motels, janitorial services, and temporary employees.
Summary information for these low-wages industries reveals the following:
- The WHD collected approximately $83 million dollars in back wages in FY 2013, which represents a decrease from the approximately $98 million recovered in FY 2012 and compares with the approximately $52 million collected in FY 2009 and the approximately $46 million collected in FY 2005.
- The number of employees who received back wages in these low-wage industries remained relatively constant and numbered 108,050 in FY 2013; 124,768 in FY 2012; 80,759 in FY 2009; and 96,511 in FY 2005.
Family and Medical Leave Act Cases
The WHD statistics also provides insight into its enforcement of the Family and Medical Leave Act (FMLA). While FMLA violations are much less prevalent than FLSA violations, the WHD nevertheless continues to check employers’ compliance with the FMLA in many investigations. The statistics with regard to leave violations are interesting:
- The WHD accepted 1,634 FMLA complaints in FY 2013, which is less than the 1,723 it accepted in FY 2012 and is less than the 1,841 accepted in FY 2009 or the 2,784 accepted in FY 2005.
- The percentage of FMLA cases in which the WHD was unable to substantiate an FMLA violation hovered around 50 percent. In FY 2013 the WHD was unable to substantiate an FMLA violation in 54 percent of cases, while in FY 2012, it was unable to do so in 55 percent of cases, and in FY 2009 and FY 2005, the agency was unable to do so in 49 percent and 51 percent of cases respectively.
- In FY 2013, the most common complaint among employees with regard to their employers’ FMLA violations was termination of employment, followed by discrimination and employers’ refusal to grant FMLA leave as the second and third most cited reasons for FMLA violations.
- As for back wages recovered for FMLA violations, the WHD recovered approximately $1.6 million in FY 2013, approximately $2 million in FY 2012, approximately $1.5 million in FY 2009, and approximately $1.9 million in FY 2005.
The WHD’s Future Enforcement Initiatives
As for what we can expect for the remainder of this administration, the WHD specifically and the DOL generally will continue to prioritize enforcement. This is the heart of the message expressed in the 2010 report by the new WHD Administrator David Weil entitled, “Improving Workplace Conditions Through Strategic Enforcement.” However, the agenda for the agency and department is growing and may tax existing resources. With the issuance of the March 13, 2014 presidential memorandum for the Secretary of Labor entitled, “Updating and Modernizing Overtime Regulations,” the WHD’s regulatory agenda may impact its own enforcement priorities. WHD has engaged in a number of stakeholder “listening” sessions on its initiative to revise the part 541 regulations and has set a date in November 2014, for when it plans to publish a proposed rate.
In addition to this regulatory priority, WHD announced on October 1, that it will publish a Final Rule establishing standards and procedures to implement Executive Order 13658, entitled “Establishing a Minimum Wage for Contractors,” which increases the federal contractor minimum wage to $10.10 per hour. Also, WHD’s regulatory agenda includes its initiative entitled “Right to Know Under the Fair Labor Standards Act.” In addition, the DOL and the WHD will play a major role in preparing regulations and guidance to implement Executive Order 13673, Fair Pay and Safe Workplaces. When the initiatives of the Office of Federal Contract Compliance Programs and Occupational Safety and Health Administration also are considered, the strain on the DOL’s resources becomes even greater.
The bottom line is that the WHD and the DOL will be active and aggressive on both the enforcement and regulatory fronts. It remains to be seen whether these priorities, plus those of other agencies within the DOL, will overburden existing resources and delay or interfere with their goals—but the prospects are real. To add to its resource challenges, congressional oversight, particularly if control of the U.S. Senate changes in this year’s elections, can compound the ability of the DOL and the WHD to implement this administration’s ambitious plans by the January 2017 inauguration of a new administration.