DOL Adding 100 Workplace Investigators: What Are Their Enforcement Targets?

The U.S. Department of Labor announced plans to add 100 investigators to its Wage and Hour Division to build out its enforcement staff and boost enforcement efforts, including “conducting investigations to determine if employers are paying workers as the law requires [and] supporting efforts to combat worker retaliation and worker misclassification as independent contractors.” In a May 26 Corporate Counsel magazine article titled “Here’s What New Workplace Investigators Are Likely to Probe,” McDonald Carano Employment & Labor Law attorney Chelsea Latino explained that the DOL will likely focus on employers who misclassify workers as independent contractors instead of employees and labor shortages also could draw the DOL’s attention to joint employer liability. Chelsea’s quoted comments are excerpted below.

  • “They’ll look for employers who contract with staffing agencies, and you see a big use of staffing agencies these days just because a lot of employers are short-staffed at this time,” Latino said. “If you use a staffing agency, it’s just super important for employers to make sure that the staffing agency is paying the employees correctly. If the staffing agency is not, then you could find yourself in a joint employment type situation and then could be liable for that issue as well.”
  • Employers would be wise to start auditing their wage and hour practices to prepare for expanded enforcement, Latino said. “They should be reviewing their existing policies and procedures and making sure they have those in place for handling employee complaints,” she said. “They should be reviewing their payroll practices to ensure that employees are being paid the applicable minimum wage and that they are obtaining overtime.”

The Wage and Hour Division also recently issued a Field Assistance Bulletin titled “Protecting Workers from Retaliation” which signals the DOL will be more aggressively pursuing violations of federal anti-retaliation laws. To help prepare employers, Chelsea outlined five key takeaways from the FAB and created an anti-retaliation checklist for employers, which are both available here.

Chelsea is available to answer questions about the Field Assistance Bulletin as well as the Department of Labor’s plans to increase its enforcement team.

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