Protecting Employers Since 1985
Department of Labor Still Very Active
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:
- 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.
- 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.
- Train personnel and management to understand the different requirements of various labor laws and specifically train with regard to overtime regulations and pay.
- Conduct internal audits to establish that all labor laws and pay requirements are being observed.
- Keep an update of any and all changes in laws in how they impact your business.
Questions? Contact Walter J. Liszka in the Chicago office at waliszka@wesselssherman.com or by phone at (312) 629-9300.
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