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DOL Wage-Hour Chief Promises More Return-to-Work Guidance (2)

June 23, 2020, 9:39 PMUpdated: June 23, 2020, 11:42 PM

The Labor Department plans to issue new guidance to answer employer questions about how wage-and-hour laws apply when reopening workplaces after Covid-19-related closures, while also bolstering enforcement by hiring new investigators.

“Over the coming weeks and months you will see new guidance come out as we start to learn new things that employers are doing and they have questions on how that works under the Fair Labor Standards Act or the Family and Medical Leave Act,” Cheryl Stanton, administrator of DOL’s Wage and Hour Division, said during a webinar Tuesday.

Stanton, whose agency enforces federal laws on minimum wage, overtime, and paid and unpaid leave benefits, said she’d formally announce later this week openings for about 50 new WHD investigators. The hiring surge will complement the addition of 45 new investigators and 15 technicians whose positions were announced in January; those new hires are being onboarded.

The Wage and Hour Division over the last few months has issued guidance on implementing a temporary paid sick and family leave law passed in March as part of the Families First Coronavirus Response Act. The agency’s advice on compliance with the FLSA and FMLA in relation to Covid-19 was issued in early March.

Taken together, the upcoming guidance and boost to WHD’s investigator ranks demonstrates how the agency aims to balance priorities during the pandemic by helping good-faith employers comply with wage laws, while also cracking down on companies that willfully short workers on pay. Those responsibilities are now magnified as the agency is charged with implementing the paid leave law passed in March to aid workers affected by the pandemic.

Stanton acknowledged that employers are dealing with a host of return-to-work complications, and urged businesses to submit related inquiries to WHD offices. She said the agency may address some of those questions in upcoming guidance.

Tip-Pool Rule

During the webinar, the first in a series of virtual DOL events, the department’s Deputy Assistant Secretary for Policy Jonathan Wolfson asked Stanton to detail any “big projects that the Wage and Hour Division has on tap,” or anything else she’s trying to complete this summer.

Stanton said WHD is working to finalize a regulation that prohibits restaurant managers from participating in tip-pool arrangements. The rule, which the restaurant industry has hailed but worker advocates and plaintiff attorneys oppose, also would permit employers to pay tipped workers the $2.13 minimum wage for unlimited time spent on related duties that don’t produce tips.

Her other top-priority initiative for the summer was to produce more guidance materials on adhering to the new paid leave law, as well as how the the FLSA and FMLA apply during the recovery from the pandemic.

Stanton didn’t mention any particular ambiguities that have caused employers confusion. But wage-hour practitioners have reported fielding numerous questions from employers about how various legal exemptions from overtime pay requirements are affected by the pandemic and whether the time workers spend getting their temperatures checked must be compensated.

Stanton also said the agency would step up enforcement of agricultural businesses in response to complaints farmworkers on H-2A visas have made about working conditions.

“We have been going on to farms...to check in on complaints that we are hearing about workers not being treated correctly,” Stanton said. “We are going to be stepping them up and we will be starting to go back to some of our agency-initiated investigations in the ag space, with our partners at OSHA.”

The agency has conducted most of its investigations of businesses over the phone instead of directly at workplaces during the public health crisis. Efforts to ramp up enforcement in the field once the virus subsides will be furthered by the addition of the dozens of new investigators Stanton said are in the pipeline.

Funding to boost hiring over the past year has allowed the WHD to partially offset a 20% decline in investigators from 2016 through 2019, according to headcounts the agency provided.

(Updated with additional reporting on Wage and Hour Division enforcement. An earlier version corrected the fourth paragraph to show WHD issued guidance on FLSA and FMLA compliance relative to Covid-19 in March.)

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editor responsible for this story: John Lauinger at jlauinger@bloomberglaw.com

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