The DOL says "Help Wanted"

The U.S. Department of Labor (DOL) announced this week that its Wage and Hour Division (WHD) is looking to add 100 new investigators to its team in the coming weeks. While the DOL is saying, “Help Wanted,” HR professionals across the country are thinking, “Good luck finding 100 new employees.”

WHD investigators needed

The WHD is seeking to replenish its depleted ranks to support the Biden administration’s enhanced wage/hour enforcement efforts. Staffing levels for WHD investigators are close to the lowest point in almost 15 years, with 757 investigators at the end of 2021.

According to the DOL, the new investigators will focus on protecting workers’ wages, migrant and seasonal workers, family and medical leave rights, and prevailing wage requirements for workers on federal contracts. The DOL detailed the following job duties for the new recruits:

• Conducting investigations to determine if employers are paying workers and affording them their rights as the law requires.
• Helping ensure that law-abiding employers are not undercut by employers who violate the law.
• Promoting compliance through outreach and public education initiatives.
• Supporting efforts to combat worker retaliation and worker misclassification as independent contractors.

The DOL indicated that if all goes well (and Congress appropriates the money), the WHD anticipates even more hiring later in fiscal year 2022. Like employers across the country, WHD may find that hiring in 2022 is more challenging than a decade ago when the WHD employed over 1,000 investigators. The WHD will now find itself competing against private employers who are offering enhanced pay and an array of benefits to entice employees.

More investigators, more investigations

With more WHD investigators, employers should plan now for more investigations and a significant uptick in enforcement efforts. The new investigators’ job duties provide a roadmap for employers on areas of expected focus.

The DOL’s hiring announcement is a reminder to employers that they should take steps now to get their wage/hour practices in order, by:

• Do a deep dive on pay practices. Most employers intend to comply with the FLSA, but practices sometimes get lax. At least annually, employers should audit pay practices in the same way a WHD investigator would during an investigation. This includes reviewing payroll records to scrutinize timekeeping and overtime practices. This is all the more important with more remote workers who may not work a traditional schedule.
• Review employee classifications.  With the nature of jobs continually changing, ensuring that employees are properly classified as exempt or non-exempt is getting increasingly more challenging. Employers should look beyond job description to understand if the actual day-to-day responsibilities meet the exempt status criteria.
• Train managers. Wage/hour mistakes can often be tied back to managers who misunderstand the FLSA’s complex requirements. Employers should include wage/hour training in regular education sessions. Ensuring that managers are able to spot potential issues is a key aspect of successful wage/hour compliance.

Employers should also note that the WHD’s enforcement efforts are likely to get a boost if the Senate approves David Weil to lead the division.  Weil served in the same role during the Obama Administration and has a particular interest in gig worker classification and joint employment issues. If Weil is confirmed, employers should also expect intensified scrutiny of workers classified as independent contractors.  

Increased wage/hour enforcement is a key component of the Biden Administration’s labor agenda. Ramping up the number of investigators is a critical step in achieving that goal. With notice of what to expect, employers should implement measures to ensure wage/hour compliance.

The McDonald Hopkins Labor & Employment Team is available to assist employers with wage/hour compliance and address any questions.