Recent Wage and Hour Developments at the DOL

The U.S. Department of Labor issued a few “gifts” to employers during December, which promises to ensure more enforcement by DOL in 2011. 

DOL Might Get (Finally) a Wage & Hour Administrator

President Obama originally nominated Leon Rodriguez as Administrator of the DOL’s Wage & Hour Division in December, 2010.  After no action was taken on the nomination in the 111th Congress, the President re-nominated Mr. Rodriguez in January immediately after the 112th Congress convened.  At this early stage, it is uncertain how the nomination will fare in the newly constituted Senate, which must approve the nominee.

Meet the Wage and Hour Administrator Nominee:  Leon Rodriguez currently serves as Deputy Assistant Attorney General and Chief of Staff in the Civil Rights Division of the U.S. Department of Justice, where he heads the operations of the Division and its work on immigration and national origin-related civil rights matters.

Mr. Rodriguez graduated from Brown University and the Boston College Law School and has spent most of his career working in the pubic sector, including serving as the County Attorney for Montgomery County, Maryland; an Assistant U.S. Attorney and First Assistant U.S. Attorney in Pittsburgh; and a trial attorney in the Criminal Section of the U.S. Department of Justice, Civil Rights Division.

While Mr. Rodriguez appears to have an impressive law enforcement background, his record does not evidence that he has any experience with key laws enforced by the Wage & Hour Division including the Fair Labor Standards Act, the Davis-Bacon Act, the Service Contract Act, and the Family and Medical Leave Act.

Interesting Background on this Long Standing Vacancy:  The Wage & Hour Administrator’s position has been vacant since President Obama took office in January 2009.  The President’s first choice, Lorelei Boylan, withdrew from the confirmation process in October 2009, after her confirmation was put on hold in connection with the controversy over the nomination of Patricia Smith for the Solicitor of Labor position.  Ms. Boylan worked for Ms. Smith, who eventually was confirmed, at the New York Department of Labor.

Request for Information Regarding Break Time for Nursing Mothers – the First Step in New Rulemaking

On December 21, 2010, the Wage and Hour Division of the U.S. Department of Labor published a request for information  (“RFI”) from the public regarding the recent amendment to the Fair Labor Standards Act (FLSA) that requires employers to “provide reasonable break time and a place for nursing mothers to express breast milk for one year after their child’s birth.”  The new amendment and break time requirement for nursing mothers is set forth in Section 4207 of the Patient Protection and Affordable Care Act, P.L. 111-148, and was effective on March 23, 2010.   The RFI is the first step in rulemaking, and employers can expect DOL to issue new regulations perhaps as early as later this year.

To avoid having regulations that unnecessarily hamstring employer’s operations, companies should submit their comments and concerns on the RFI and the new nursing mothers break requirements.  The RFI comments must be submitted by February 21, 2011.  The key issues include:

  • Should nursing mothers receive compensation for break time of 20 minutes or less?;
  • What is considered a “reasonable break time?”;
  • What “space provided to the nursing mother for expressing breast milk” is adequate and meets the requirements of the statute; and
  • What would be considered “reasonable notice” to the employer of an employee’s intent to take breaks to express milk?

Employers need to act now and to have their voices heard in DOL’s development of the new regulations.

DOL Publishes Enforcement Statistics Online, Including Wage & Hour Division Data

For the first time, DOL enforcement statistics are now available online in a searchable format, at http://ogesdw.dol.gov/index.php.  The Wage & Hour Division data covers all concluded compliance actions since FY 2008 and includes whether any violations were found, the back wage amount assessed, the number of employees due back wages, and any civil money penalties imposed. 

Employers should keep in mind that while these statistics provide a helpful resource for employers, the information is also available to other enforcement agencies (e.g., EEOC, state human rights offices), plaintiff’s counsel, labor unions, and other employee advocacy organizations.  We understand from discussions with DOL representatives that both within various agencies and divisions at DOL and on an interagency level, the data is being reviewed and used in investigation and enforcement proceedings to determine whether the employer has a past violator status of any laws enforced by the DOL.

Tip:  Employers should take a moment and visit the DOL website to see what information is there about their company.  If the information is inaccurate, contact DOL to try and have it corrected.  Remember, others already are looking and making decisions affecting the company based on these DOL enforcement data.

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