Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in the Bloomberg Law Daily Labor Report, in “Inadequate Labor Department Resources Stymie Enforcement Efforts,” by Rebecca Rainey.
Following is an excerpt:
US Department of Labor lawyers lack the resources to bring every case where agency investigators find violations of federal labor laws, leading to at least one instance of businesses not receiving citations—a symptom of the funding constraints that have long plagued the agency’s enforcement arms.
Earlier this year, a Wage and Hour Division investigator uncovered violations committed by an employer participating in the H-2B seasonal worker visa program, but was told “not to cite a violation at this time,” according to a copy of the case report reviewed by Bloomberg Law.
After conferencing with DOL attorneys over the case, a regional arm of the Office of the Solicitor—the department in charge of providing legal services to DOL’s enforcement subagencies—said it “cannot litigate every case due to resource issues.”
The abrupt ending to the case underscores calls made by Democrats and worker advocates that worker protection agencies and the DOL’s attorney’s office need more resources to carry out the agency’s mission—especially as the department takes on new initiatives, like its child labor exploitation taskforce. The Solicitor’s Office has received largely flat funding since fiscal year 2013, according to DOL budget documents. …
Resource constraints at the Wage and Hour Division and the Solicitor’s Office “have been a fact of life for a long time,” said Paul DeCamp, a former Wage and Hour administrator under President George W. Bush and now a management-side attorney with Epstein Becker & Green PC.
Both Miljoner and DeCamp said the solicitor’s office has to weigh various factors before deciding whether to bring a case, like how easy it is to prove the violations, how many workers are affected, the severity of the violations, and how strong the case is, among other considerations.
For example, in the closed H-2B investigation shared with Bloomberg Law, the wage and hour investigator found that the employer failed to post a notice of rights for immigrant workers, took illegal payroll deductions, and supplied altered pay records in the course of the investigation. But, in explaining its decision to not cite the employer, the regional solicitor’s office noted it was the employer’s first investigation and an opportunity for the agency to advise the employer on its legal obligations under the immigrant worker program.
“It’s not unusual for agencies to have to make choices, whether that’s enforcement agencies like the Wage and Hour Division or litigating agencies like the solicitor’s office, they have to prioritize. They can’t go after every single possible violation across the United States. That’s just not an efficient or effective use of the resources,” DeCamp said. “So they have to make choices.”
The DOL’s Office of the Solicitor provides legal counsel to all DOL subagencies, like WHD and the Occupational Safety and Health Administration, on regulations and enforcement decisions. The office also brings litigation against employers on behalf of DOL’s enforcement subagencies when an employer is found violating federal labor law.
Staffing at the department’s Solicitor’s Office fell to 542 in FY 2023, according to agency budget documents. The Biden administration sought a $60 million funding boost for the office in FY 2024, in part to bring on an additional 203 full-time employees.
“The Office of the Solicitor (SOL), the legal enforcement and support arm of the Department, continues to experience operational costs that increase faster than appropriation and rising demand for legal support in litigation, advice, and regulatory work,” the administration wrote in its request to congressional appropriators, warning that “without adequate resources for SOL, DOL will be poorly positioned to achieve its mission in any Area.” …
Not Scot Free
But just because citations aren’t issued doesn’t mean an investigation’s findings are rendered worthless.
If an employer were to find itself in the rare situation where violations were discovered but a citation wasn’t issued, it’s not necessarily a get-out-of-jail-free card, former WHD officials said.
If a business continued violating the law after being caught by the DOL, in the future it could lead to much stiffer penalties as a repeat or willful violation, DeCamp said.
“It doesn’t get better for the employer just because the department doesn’t litigate in this instance,” DeCamp said. “Businesses in this type of circumstance where the agencies find a violation and nevertheless elect not to litigate, would still be well advised to change their practices to avoid the risk of having to deal with the department down the road in a situation where they might be more willing to litigate the next time.”