The Trump administration's priority for the Department of Labor has been to eliminate regulations thought too costly for businesses to bear. In particular, the administration promised to change how wage and hour law is regulated in the U.S.
Some progress toward that goal has already been made. As we discussed last week, the DOL recently simplified the calculation of tip credits under the Fair Labor Standards Act. Also, the agency is currently reevaluating the FLSA salary threshold for exempt workers.
Recently, a panel of attorneys at the American Bar Association's 2018 Labor and Employment Conference identified three priorities of the Trump administration's DOL. A major goal appears to be encouraging voluntary compliance by employers.
DOL again to issue opinion letters
When employers need the Department of Labor's interpretation of the law in a specific situation, they may request opinion letters. These can address any fact-specific question about the application of any law the DOL enforces. Once issued, opinion letters become precedential, allowing those in similar situations to rely on their guidance. Opinion letters are not available during DOL investigations or litigation with employees.
In 2010, the DOL stopped issuing opinion letters, replacing them with more general guidance. Now, the Trump administration's DOL has brought them back. Employers can request official DOL guidance on their specific situations before an employee claim or an enforcement action is initiated.
PAID program provides DOL review of self-audits
Earlier this year, the Department of Labor created the Payroll Audit Independent Determination (PAID) program. When employers perform a voluntary self-audit of federal Fair Labor Standards Act issues through the PAID program, the DOL will identify any minimum wage and overtime violations and work toward an immediate settlement.
The PAID program is not available to employers that are under investigation by the DOL or in active litigation with employees, so your company should consider submitting a self-audit right away. When FLSA issues are discovered through complaint or enforcement, the employer could be required to pay double damages -- the underlying wages and overtime plus an equal amount in liquidated damages. A timely PAID program audit could prevent that.
More enforcement of H-1B visa rules
The Labor Department won't be focusing solely on voluntary compliance. The ABA panel also identified an increase in enforcement efforts around employers who hire foreign workers through the H-1B temporary work visa program. Last year, President Trump issued an executive order aimed at ensuring these highly-skilled workers are paid appropriately and don't displace U.S. workers. Should employers falsify visa applications, federal fraud charges could result.
If your organization is interested in an opinion letter, a PAID program review or an immigration issue, contact your employment law attorney.