Some Random Observations on DOL Investigations and Wage and Hour Opinions

Two FLSA topics have been nagging me recently, and I thought I’d share them here.

1) Under the federal economic stimulus package, the Wage and Hour Division has added to its ranks 250 new investigators.  The funding for most of these new hires is slated to eventually expire when the stimulus funds end.  While the DOL is surely entitled to add investigators, my concern is whether flooding the regions with so many inexperienced investigators will foster high quality investigations.  That is, will these new investigators, whose tenures may be short, have an adequate understanding of the regulations to appreciate their nuances and how they interrelate?  Also, will they be unduly aggressive or will they more practical in their techniques and their handling of legitimate differences in the law’s application (as are any of their more experienced career investigators)?  More information should be provided by the DOL as to how it intends to train, supervise and deploy these investigators.

2) Have you noticed that there have been no Wage and Hour Opinion Letters issued under the new Administration?  During the term of the prior Administration, Opinion Letters were published at an average rate of 2 to 4 per month, and often more. 

The obvious explanation likely lies in the fact that there has yet to appointed a new Wage and Hour Administrator.  Is that a good enough explanation?  Can’t the Acting Administrator issue these opinions?  Or, are there other explanations?  Are there no requests pending?  That seems unlikely. 

Is the Division really stalled in its ability to issue interpretations during the period it is without a politically appointed leader at its helm?  This may be the case, but should the administration of this law be subject to a political agenda?  Can’t the Division provide insight on the laws via Opinions during this period?  It seems as though it should be able to since it is not putting enforcement initiatives on hold.  If they can do one, it seems as if they should be able to do both.

Also, if the lack of an Administrator is the rationale for the Division’s silence, how quickly will it be able to undo the backlog once the position is filled?  Obtaining Opinions is already a long process, even though recent Administrators have taken serious and effective steps to be more responsive.  Will this logjam be cured quickly?  The legal community on both sides, i.e., employer and employee counsel, is still waiting to hear if the Opinion Letters issued in January 2009 by the prior Administrator, but withdrawn by the current Administration in January 2009 due to an apparent date of mailing oversight, will be re-issued.

I’ve said my peace.  I look forward to hearing from others on these points.  I also look forward to my concerns being undue.  Unfortunately, I’m more discouraged than encouraged about what my lie ahead with respect to both these points.

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