Paul DeCamp Quoted in “3 Tips for Handling a DOL Wage and Hour Probe”

President Joe Biden has promised his administration will aggressively enforce federal wage and hour laws and regulations, and that means employers need to be ready if the U.S. Department of Labor comes knocking ...

The best thing employers can do is try to stay on the straight and narrow, said Paul DeCamp, a partner at employer-side firm Epstein Becker Green who served as administrator of the DOL's Wage and Hour Division under former President George W. Bush.

"Employers should do their level best to make sure they're complying with the laws," he said. "An ounce of prevention is worth a pound of cure."

The DOL's Wage and Hour Division doesn't always wait for an allegation of wrongdoing before starting an investigation, and "very few employers get to 100% compliance, including the Department of Labor itself," DeCamp said.

Here, Law360 takes a look at some best practices employers can follow if they find themselves caught up in a wage and hour probe.

Don't Treat Investigators As Enemies

While it's not usually a good sign for a business when a government investigator shows up, establishing a cooperative relationship up front can help a DOL probe go more smoothly for both sides, attorneys said. …

One of the best ways to show a willingness to cooperate is to be responsive to investigators' requests for information, Epstein Becker's DeCamp said. This is especially important during pandemic times, when remote work can complicate timely communication, the former Wage and Hour Division administrator added.

"If the investigator thinks you're getting in the way, that's when they start to bring out the big guns," he said. "Then the investigator has to go to more aggressive measures like issuing subpoenas and otherwise expanding the investigation."

Employers should be cautious about directly approaching the DOL if they feel an investigator has overstepped their authority. It's typically better to talk to an attorney who has experience dealing with the agency, DeCamp said.

"Sometimes just picking up the phone and having a conversation with the investigator's boss can be a helpful thing to do," he said. "At the same time, that can also backfire if you as the employer are making an outreach like that that's unfounded." …

Do Prepare For a Sequel

After an investigator concludes a probe, employers can challenge the findings and any penalties that might be assessed through an internal DOL appeals process. …

Even once any appeals are over, employers shouldn't assume they've seen the last of the DOL's enforcement arm. The Wage and Hour Division makes a point of revisiting employers after investigations conclude, according to DeCamp.

"Be aware that you're likely to see the investigator or someone else from the agency in the relatively near future," he cautioned.

It's easier for the DOL to argue that a violation is willful if the agency has already cited an employer for the same issue in a previous investigation. And a finding of willfulness can come with criminal penalties, so it's important to promptly correct any issues identified during an investigation, DeCamp said.

"If you don't take to heart the message from an investigation and fall back into the same bad habits, or start to get sloppy with your wage and hour practices after an investigation, that's really going to look bad and put you into a different category in a subsequent investigation," he said.