In contrast to the Bush administration, in which frozen budgets and staffing cuts hindered enforcement of federal employment laws, the Obama administration is restocking the relevant federal agencies and taking a more assertive enforcement posture, three administration officials told a plaintiffs' lawyers' organization June 25.
Speaking at the National Employment Lawyers Association's annual conference, Solicitor of Labor Patricia Smith said the Labor Department has a "very aggressive" regulatory agenda that includes an initiative to stop employers from misclassifying workers as independent contractors or as exempt employees under the Fair Labor Standards Act.
Smith said with its overall "plan, prevent, and protect" theme, the department seeks to change a "culture of noncompliance" among some employers who flout the FLSA and other worker protection laws and dare the federal government to catch them.
To counter what the administration considers "an epidemic of employer misidentification" of employees, Smith said DOL's Wage and Hour Division is working on a rule that would require employers that classify workers as independent contractors to produce a written analysis of their reasons and to provide those documents to the affected workers. An employer's failure to do so would result in a presumption that the worker is an "employee" covered by the FLSA and other employee rights statutes, Smith said.
Some states have taken the lead against employers that misclassify workers and the Labor Department is collaborating with those states as well as with the Treasury Department to track down such employers, Smith said. "You are going to see a major misclassification initiative [from DOL] over the next few months," she told the plaintiffs' lawyers group.
Collaboration Among Agencies
Renewed collaboration among the Labor Department's Office of Federal Contract Compliance Programs, the Equal Employment Opportunity Commission, and the Justice Department's Civil Rights Division was a theme articulated by Smith as well as EEOC Chair Jacqueline Berrien and Justice Department senior counsel Jocelyn Samuels, who also spoke at the conference.
Smith said OFCCP is cooperating more with EEOC and DOJ's Civil Rights Division in identifying potential federal contractor employers for investigation. She remarked that during the Bush administration, OFCCP was told "they had the resources to litigate one case per year," but added that the situation has changed as the agency receives more resources and personnel.
OFCCP will be revisiting its affirmative action plan requirements for federal contractors, particularly in the construction industry, with proposed rules expected in early 2011, Smith said. She added that the proposal probably is "going to be somewhat controversial" and she encouraged the plaintiffs' lawyers to submit public comments at the appropriate time.
DOL is adopting some new approaches regarding both guidance for stakeholders and to litigation, Smith said. While the department during the Bush administration issued "a flurry of opinion letters" that benefited only particular parties who submitted questions, Smith said, DOL now is issuing "administrative interpretations" that it hopes will have a broader impact.
"You are going to see a major misclassification initiative over the next few months," Solicitor of Labor Patricia Smith told the lawyers' group.
For example, the department recently issued such interpretations regarding the Family and Medical Leave Act's coverage of employees who care for children and regarding "donning and doffing" issues under the FLSA, Smith said. Stakeholders, including employment lawyers, should expect to see more such interpretations from DOL, Smith said.
As for litigation, OFCCP and other Labor Department agencies are exploring "enterprise-wide enforcement," in which DOL will seek global settlements against companies charged with multiple violations in different DOL regions or under different laws, Smith said.
One example of the enterprise-wide approach is the department's recent FLSA settlement with Tyson Foods (106 DLR AA-1, 6/4/10), she said. OFCCP also is working on a discrimination settlement with a "major American corporation" that involves four DOL regions joining forces, Smith said.
Smith also requested NELA's help in informing the solicitor's office about potentially significant cases in which the Labor Department could participate as an amicus curiae. She noted that during the past year, some 15,000 FLSA cases were filed, but the Labor Department filed only about 150 of those. The department is "really reinvigorating our amicus program" so it needs to hear from private attorneys about significant cases they are pursuing, Smith said.