Fri, 06/26/2020
Using the COVID-19 pandemic as an excuse, the Department of Labor (“DOL”), the federal agency whose mission is to “[t]o foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights,” has further betrayed America’s workers.
On June 23, 2020, DOL rolled back Obama-era regulations and announced a major concession to employers accused of wage theft. The DOL is the federal agency charged with enforcing the Fair Labor Standards Act (“FLSA”), and the only entity that can pursue violations on behalf of State employees. Pursuant to the FLSA, employees may be entitled to liquidated (or double) damages if their employers fail to properly compensate them for work performed.
Rather than continuing to pursue all of the relief to which employees may be entitled by demanding liquidated (or double) damages in settlements before it filed a lawsuit, effective July 1, 2020, the DOL announced that it would no longer pursue liquidated damages in cases that the agency tries to settle before litigation, except in very narrow circumstances. Pursuant to an Obama-era policy, the DOL had previously attempted to recover liquidated damages in nearly every case.
The announced policy also requires additional administrative approval – by both the Wage and Hour Division Administrator and the Solicitor of Labor – in cases where liquidated damages are requested. These changes make it extremely unlikely that employees will recover liquidated damages in FLSA cases pursued by DOL. Field Assistance Bulletin No. 2020-2, announcing and describing the change, is available at: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/fab_2020_2.pdf.
This decision is not the first time DOL has abandoned American workers in recent months. The Occupational Safety and Health Agency (“OSHA”) has issued just one citation relating to COVID-19 safety violations, despite receiving over 4,000 COVID-19-related complaints in recent months. As a result, states are slowly stepping into the void left by DOL – until then, no one is protecting the health and safety of essential workers.
In late May, 2020, the DOL had also made it easier for employers to use the so-called fluctuating workweek method of calculating worker pay – the change will lead to pay cuts and excessive overtime for fire fighters and emergency medical services providers. MSE’s managing partner Gregory McGillivary further explains how the new rule could harm first responders, even as they work to save lives during the on-going coronavirus pandemic, in this Daily Labor Report article: https://www.mselaborlaw.com/news/mcgillivary-fluctuating-work-schedules
MSE’s attorneys fight for workers every day. For more information about MSE and its attorneys, visit our firm profile: https://www.mselaborlaw.com/about-us/firm-profile. If you believe that your employer has not correctly paid you for your work, contact MSE at info@mselaborlaw.com.
