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WHD Wage and Hour Complaints and Investigations
Mar 22, 2019 in Term Paper
The U.S. Department of Labor (DOL)
The U.S. Department of Labor (DOL) has the Wage and Hour Division (WHD) that has been publishing the information about new activities since it was first established (Robinson). WHD has established multiple laws and the area of its expertise is to ensure that the mentioned laws are enforced and followed. The matter is that the demands in the investigators have increased due to multiple issues and claims related to wage and hour complaints Investigator is to look at the employer who is expected to pay his employees properly according to the laws and who should not violate any child labor provisions. Moreover, the selected investigators must have a vast area of expertise, as they are to deal with multiple issues because sometimes employer has certain tricks to hide the truth (Business and Legal Resources, 2015).
The prevalence of the wage and hour complaints in the recent years has not only become more frequent, but also it is considered a common issue in modern working environments. The major contributors to that have served the current downsizing of the economy, financial crisis, further court rulings, and successful settlements, which means that there would be no upcoming decrease in the number of violations from the side of the employer as well as in the number of complaints from the side of the employee. Thereafter, the objective of the current paper is to discuss the wage and hour complaints that are being held and investigated by the U.S. Department of Labor.
The official data reported by the NERA Economic Consulting stated that in 2012 there has been around half a million of U.S. dollars worth settlements regarding the violations of wage payments for the recent years. Moreover, the price has gone up from $4.6 to $4.8 million from 2011 to 2012 respectively. The wage and hour cases medium values settlement was equal to $1.7 million in 2012. Furthermore, it has been tracked that since 2007 the doffing and donning claims, as well as misclassification and overtime have become one of the most popular claims on a regular basis (Kyger, 2015).
Federal Fair Labor Standards Act (FLSA)
The creation of the Wage and Labor Division took place in 1938 and it was the Fair Labor Standards Act (FLSA) enactment. The major objective of the division and its creation is related to the enforcement and administration of the necessary laws that could cover actually every ‘corner’ of the State and private employment areas. It includes nationwide staff of professional investigators as the major part of its division, as well as well supervisors, clerical and technical workers responsible for FLSA enforcement, the Migrant and Seasonal Agricultural Worker Protection Act, the Employee Polygraph Protection Act and other important regulating documents (U.S. Department of Labor, 2015).
The Federal Fair Labor Standards Act (FLSA) is the regulating body that looks into the wage and hour enforcement as well as other types of divergent state laws. Employers must be compliant with all the regulations. Therefore, once an organization is recognized as one of those that are not in compliance, it is obliged to pay certain penalties and fines as well as back wages payment. The mentioned NERA Economic Consulting study has revealed data according to which as of 2012 around 25 percent of the employers in USA have violated the law and have paid around $20 million of back wages in order to cover the fine (Alaniz, 2013).
The major way through which WHD is checking the wage and hour complaints is related to sending their investigators to conduct an audit. Those are the team of professionals, who have undergone specialized trainings prior to that and have the appropriate skills as well as relevant experience. The number of staff is constantly expanding and this entitles workers to conduct more investigations, as the number of cases has grown proportionally in addition to the fact that WHD has started to increase its activities by introduction of a new directed enforcement activities and initiatives. The good example of that can be the low-wage initiative, which is a very common situation in the Hospitality business industry. The matter is that WHD is initiating certain investigations even if there is no formal complaint filed, as it has turned into a routine to have more than 30% of caseload dedicated to such types of situations, as much might be revealed during the mentioned unplanned audits.
The FLSA has a provision that entitles the WHD with the possibility to enter the premises of the employer and conduct a legitimate audit that would look into the investigation regarding the compliance with the requirements of the regulating body. The major requirements speak about such things as 1) certain employment and payroll records maintenance; 2) all hours worked are compensated; 3) at least minimum wage is in place as well as the compensation equivalent to the hours that were marked as overtime (after 40 working hours) has been in place; 4) compliance to the basic rules and regulations regarding workers who are under 18 years old and are being employed on a special basis.
Wage and Hour Division (WHD)
The WHD objective is to make sure that law regarding the minimum wage payments as well as recordkeeping, child labor and other are in place and this is a challenging task (United States, Department of labor, 2015). WHD’s investigators are to inform the employer about the upcoming visit either by phone or by sending an official letter of notice. It is a letter that includes the information when and at what time the visit would take place. It might also have certain attachments that might be in a form of data records and other documentation needed for the pending investigation. The requirement of FLSA stipulates that employer is obliged to keep records of payments so it would serve as the evidence that all is in compliance to the governmental regulations. If the investigator chooses not to inform the employer much in advance, he/she is giving “unannounced call” about the upcoming visit. It is important to mention that the number of unannounced visits has started to increase year after year; however, employer has a legal right to refuse the access to his records. WHD might file an official subpoena in order to obtain an immediate access to the record of the employer once there is a suspect on the subject of violation.
The process of one-site visit is when an investigator is presenting their credentials and holds a conference in a format of an ‘opening’ session. This is a time when investigator tries to meet all the parties involved and discuss the purpose of the investigation with them; as well as to identify the potential milestones and inform the employer what documents he/she needs to prepare and show to the official governmental representative in order to support his/her position. It is a ‘fact-finding’ investigation, which might require the actual process of interviewing the workers as well as looking into documents of payroll system. Due to the high level of professionalism and extensive knowledge, investigators might look into additional aspects and reveal more complicated inconsistencies and violations. Other important details are related to the area of investigation, as the governmental representative might take a decision to expand the audit to other sites if the employer has such. Thus, such approach encourages employers to be proactive and provide all necessary data to the investigator, as this would help to decrease the geographical scope and time wise would be shorter (in case the employer does not have any significant and intentional violations and incompliances).
The next step is the process of the employees interviewing, which is a very important component of any type of audit. The interview is being done by the investigator, while exempt and non-exempt can become a part of it. It is stated that the employer has no right to be present when the investigator conducts an interview with non-exempt, as the information that is being shared there is private and confidential. Nevertheless, only during the interview with an exempt manager the representative from the side of the organization can be present. There are occasions, during which investigator might conduct an interview through a telephone or send a range of questions on a personal email. The data that is obtained through that way is legitimate and can be legally used within the frame of the open investigation by the WHD.
The last step is about closing and final thoughts, when the investigator is to present his/her findings in the form of a report or any other required official document. Thus, the investigation always has to inform the employer about the finding so he/she should schedule an official meeting with the latter mentioned in order to have the further discussions. In addition to that, it is a job of the WHD department to make sure that the proper management levels of the company are informed about the findings, so they can deal with it, bare with the consequences and do their best in order to prevent such situations in the future. The closing conference is the time when the investigator is to reveal all the information that has come out during the audit, because the employers are obliged to commit certain corrective actions from their side in order to settle the situation. Moreover, employer is expected to provide an official reply to the findings during the conference; however, due to certain reasons and circumstances, the latter mentioned part might defer a response, which is related to the time perspective. It is so, because sometimes employer needs more time to review the findings, submit the specific statement position and make sure that the back wage computations are verified. The back wage computations and their size is mainly suggested and nominated by the investigator, who knows the details of the case as well as specifies the scope and size of violations, so it would be further reviewed by WHD (Robinson).
It is important to mention in the current paper what the employer has to do in order to make sure that he/she stays out of trouble. Therefore, the employer should comply with the governmental regulations as well as holding the regular consultations with the law counsel, which would help to ensure that all regulations are in place. The first step is about the proper classification of the workers, as sometimes determining those workers who require to be paid overtime might not be an easy task. Furthermore, many law cases are about the fact that employer has simply misclassified the worker and due to that, the not proper wage amount has been paid out. The most typical classification is about exempt or nonexempt workers, while the first mentioned are required to be paid the overtime amounts based on the regulations that are set by the federal laws, and this is mainly about administrative staff, executives and professionals. Thus, if someone is paid a salary this does not mean that someone is properly exempt and this is when the misclassification of workers occurs. The FLSA has certain regulations regarding duties and salaries test, according to which a person can be classified as exempt. In addition to that, other classifications are based on the category of duties. This might cause much of confusion and this is the reason why employer should better take the advice from the counseling services.
There also exist doffing and donning allegations, which should be compensated and employers must watch it in order to make sure that the workers are being fully paid for such type of services. Tool allowance mistakes are another issue that many good employers face, while certain safety equipment must be in place as it is being required on the federal level and sometimes such things might require deduction from the wages of the workers. Nevertheless, this should never be lower than the minimum wage and this is another mistake that employer should never forget. In order to prevent additional mistakes, employers must conduct job classifications and payroll practices, while this is about periodical checking of the hour tracking by the employees. Conduction of audits is another preventative measure that must come as a routine. Union employees require particular carefulness and knowledge of local and state laws would be an advantage (Alaniz, 2013).
In conclusion, it is important to mention that WHD has been created only as a body that can deal with the existing complaints, but it is up to the employer to make sure that he/she complies with the existing laws. Thus, the proactive behavior would help to prevent any issues in the future.