Brief:

• The U.S. Department of Labor will add 100 investigators to support its Wage and Hour Division, the agency announced earlier this month.
• Investigators will conduct investigations to ensure workers are receiving their full wages, promote compliance through outreach and public education programs and aid in efforts to fight against worker retaliation and the misclassification of workers as independent contractors.
• “Adding 100 investigators to our team is an important step in the right direction,” Acting Wage and Hour Administrator Jessica Looman stated in the agency’s release. “We anticipate significantly more hiring activity later in fiscal year 2022.”

Insight:

DOL’s hiring push for wage and hour investigators, along with its promise of “significantly more hiring” to come, signals the agency’s intensifying focus on employers’ violations of wage and hour laws.

The move aligns with the Biden administration’s demonstrated interest in workers’ rights, which has taken shape in several ways, including the selection of former union official Marty Walsh as Secretary of Labor and the issuance of an executive order last April that required a minimum wage of $15 per hour for federal contractors.

Wage theft — the denial of an employee’s rightly-owed wages or benefits — has been a significant labor violation for years. Common violations include failure to pay overtime; failure to abide by the local, state or federal minimum wage laws; tip theft; failure to allow breaks; and failure to allow unpaid, job-protected leave following childbirth or for a medical condition, as required by the Family and Medical Leave Act.

According to an analysis of DOL data by the Economic Policy Institute, a progressive think tank, DOL’s Wage and Hour Division recovered $257.8 million in back wages for workers in fiscal year 2020, $322.5 million in fiscal year 2019, $304.9 in fiscal year 2018 and $270.4 million in fiscal year 2017. More than 1 million workers received recovered wages during this period, with an average of more than $1,000 per worker.

Essential workers and immigrant workers are particularly vulnerable to wage theft. DOL’s analysis of low-wage, high-violation industries for 2021 shows food services, construction and retail lead in cases. In December, the EPI released a report showing that migrant workers with H-1B visas working as subcontractors at companies like Disney, Google and FedEx were underpaid by at least $95 million. HCL Technologies, the India-based staffing firm that placed those workers, used underpayment as a “competitive strategy,” EPI alleged after reviewing the firm’s internal documents.

The DOL is cracking down on worker misclassification, a strategy some employers flirted with in anticipation of the Occupational Safety and Health Administration’s nationwide vaccine mandate for employers (which the U.S. Supreme Court has since stayed). The agency called a recent decision by a Virginia federal court requiring a medical staffing agency to pay $7.2 million in back wages and damages to more than 1,000 workers an “unequivocal message” on misclassification.

HR pros can help ensure their workplace is not violating employees’ wage and hour rights by reviewing the relevant legislation, including the Fair Labor Standards Act and the Family and Medical Leave Act.