The President has not yet nominated an Administrator for the DOL Wage and Hour Division and the new Secretary of Labor, Alexander Acosta, has not named a political adviser to work with the Wage and Hour Division’s careerists. Thus, without new policy guidance, DOL field investigators seem to be enforcing minimum wage and overtime laws by adhering to and following policies that existed before January 20, 2017.
With that said, there are signs that some local DOL offices may be re-thinking their attitude toward businesses on their own, with their thinking being that the DOL will adopt, as an official stance, a more business-friendly enforcement policy. For example, there are signs that investigators are not keying in on joint employer relationships and may not be so quick to assess double damages (liquidated damages) on wage assessments made.
Alfred Robinson, a former WHD Administrator, and someone likely to know, has stated that. “I’ve seen offices that maybe pushed liquidated damages or things of that nature beforehand are not so adamant about it this year.” He added that, “I read the tea leaves as suggesting that hopefully some reason is coming into some of the enforcement practices.”
The agency has more than 1,000 investigators and the lack of leadership in the “main office” could make it harder for the agency to speak in a unified manner. A long time ex-WHD official observed “until there’s political leadership in place below the Secretary, I think we’re going to see wage-and-hour on automatic pilot, and one of the consequences of that is that some of the district offices are left to their own devices.”
Some lawyers believe that the DOL is taking a more neutral enforcement stance thus far. In contrast, there are reports that some investigators are becoming more aggressive, as they set short time frames for the production of documents as a component of an investigation.
Under President Obama, the DOL significantly increased the number and kinds of cases on which it would assess liquidated damages. This is expected to slow down, as it is a big hammer for the agency, especially in an administrative context. As far as guidance issuing, the closest thing to the implementation of policies was the withdrawal of the two Administrator Interpretations on independent contractor status and what constitutes a joint employer relationship.
I expected the DOL to be more business friendly under this Administration, but if the agency does not get organized, there will be no clear direction. Maybe that is a good thing for the employer-defendant world.