Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in Law360 Employment Authority, in “How Jarkesy May Reshape DOL Civil Penalty Enforcement,” by Daniela Porat. (Read the full version – subscription required.)

Following is an excerpt:

What remains unclear is whether any claim for civil money penalties invokes the Seventh Amendment right to a trial or if that is limited to claims that are analogous to a common-law right of action, DeCamp said.

“What lawyers have been trying to figure out since the Jarkesy ruling came down is whether that second part of the court’s opinion talking about historical analogs and tethering the Seventh Amendment right to finding a comparable claim that existed at the founding of the Republic—is that necessary to the Seventh Amendment right,” he said, “or is that simply gilding the lily?”

Minimum wage, overtime and child labor provisions did not exist at the founding of the republic, DeCamp said, so the DOL’s ability to impose penalties for such violations will hinge on whether they need to be tied to a common-law claim.

But even if Jarkesy does limit the DOL’s ability to impose penalties through the administrative process, that doesn’t mean the department will be unable to punish bad actors, DeCamp said. It just means the DOL will have to do that in court.

“If the department proves its case and demonstrates to a jury that penalties are appropriate under the statute, I suspect that juries will not hesitate to impose penalties in appropriate cases,” he said. “I do think it’s going to cause the department to have to be a bit more thoughtful and careful in how it selects targets for penalties and which employers it goes after.” …

“As things currently stand, the department has more power and more latitude to punish than it does to simply get workers their back pay,” DeCamp said. “I don’t see Jarkesy as a threat to the Department of Labor. I see it as maybe restoring proper balance to how the department carries out the punitive portion of its mission.”

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