GAO: DOL Department of Wage and Hour Fails to Protect Workers – Prosecute Violations

Yawn! So what else is new? Another Bush agency transformed from one that fulfilled its mission to protect the powerless and to crack down on law-breaking employers into one that completely refuses to do its job. Just another example of our unitary executive – make that uni-tarry executive – at work. Talk about your energy in the executive the ultra conservatives tout! I guess the WHD folks have found a burning bush to tell them what their life’s mission is about.

And so we have Faith-Based Worker Protection from the Faith-BasedDepartment of Labor (DOL). Which means you gotta take that you’re being protected at faith value, I gather.

The Department of Labor’s Wage and Hour Division is charged with collecting underpaid and unpaid wages and enforcing violations of the minimum wage and overtime laws (plus prohibitions on child labor). In addition to collecting wages owed, the WHD has the power to prosecute employers in court and to assess and collect penalties from employers as well as other sanctions.

According to a new GAO study that is so not how itis done in this administration. The way it now works is the employer fails to pay wages, admits it wasn’t paying, says it doesn’t have th emoney to pay, and the WHD tells the law violating employer, “Aw, Gee! Sorry to Bother You.” And then the WHD tells the victim to find a lawyer and sue.

GAO identified case studies that show WHD inadequately investigated complaints from low-wage and minimum wage workers alleging that employers failed to pay the federal minimum wage, required overtime, and failed to pay employees their last paychecks. Examples of inadequate WHD responses to complaints included instances where WHD inappropriately rejected complaints, failed to adequately investigate complaints, or neglected to investigate until it was too late. The table below provides examples of several case studies.

Here are some examples from the new GAO study. GAO found that there has been:

(1) a decrease in enforcement activities at WHD amidst a decrease in investigative staff,

(2) WHD’s failure to make effective use of its current compliance tools and strategies, and

(3) the agency’s inability to demonstrate performance results.

The stories of the people hurt by these failures are clear examples of harming the least among us.

Night attendant at assisted living facility/ Ohio

• A homeless woman receiving free room and board while working as a night attendant at a nursing home alleged her employer had failed to pay her wages for an entire year.

• According to WHD, the employer admitted it had failed to pay any wages to the night attendant and considered the room and board to be pay, but stated it did not have any money to pay the back wages.

• WHD dropped the case and advised the night attendant of her right to file a private lawsuit.

• The employer was still in business as of June 2008.

Pool maintenance technician/ Florida

Last paycheck – minimum wage

• Pool maintenance technician alleged that he did not receive his final paycheck from his employer.

• Employer admitted to the WHD investigator that they did not pay the employee’s last paycheck but refused to pay employee.

• WHD dropped case and advised the worker of his right to file a private lawsuit.

Cashier/ Florida
Last paycheck – minimum wage

• Gasoline station cashier alleged he did not receive his final paycheck from his employer.

• According to WHD, the employer agreed that it owed the cashier his last paycheck, but asked the WHD investigator to call back later to resolve the complaint.

• WHD dropped the case after several subsequent calls to the employer were not returned.

• WHD advised the cashier of his right to file a private lawsuit.

Among other things, problems, GAO found that WHD had:

(1) inappropriately rejected complaints based on incorrect information provided by employers,

(2) failed to make adequate attempts to locate employers,

(3) did not thoroughly investigate and resolve complaints, and

(4) delayed initiating investigations for over a year and then dropped the complaint because the statute of limitations for assessing back wages was close to expiring.

Here is how GAO describes the new normal at WHD.

We data-mined WHD’s WHISARD database and found thousands of cases with characteristics similar to the case studies we reviewed. For example, we found more than 16,000 cases, called conciliations, which were similar to some of our case studies because they were opened and closed within 3 days. In addition, we found more than 100 cases that were closed because WHD could not locate an employer, and hundreds of cases that were assigned to an investigator more than a year after the complaint was received.
. . .
We found that in all of the case studies reported in this testimony, WHD inadequately investigated complaints. We identified case studies where initial screening by WHD officials incorrectly rejected valid complaints due to reliance on documentation provided by employers, WHD failed to locate employers implicated in complaints, and WHD’s investigations were limited to phone calls made to the complainant’s employer. We also found examples of complaints that WHD did not attempt to investigate for over a year, eventually dropping the case because the statute of limitations was close to expiring.

The investigative report includes narrative description case after bungled case. For the love of humanity, how can they do this? Yep! Read ‘em and weep!

Department of Labor: Case Studies from Ongoing Work Show Examples in Which Wage and Hour Division Did Not Adequately Pursue Labor Violations GAO-08-973T, July 15, 2008

The companion testimony is Fair Labor Standards Act: Better Use of Available Resources and Consistent Reporting Could Improve Compliance GAO-08-962T, July 15, 2008

Here is the GAO’s summary of the information included there.

From fiscal years 1997 to 2007, the number of WHD’s enforcement actions decreased by more than a third, from approximately 47,000 in 1997 to just under 30,000 in 2007. According to WHD, the total number of actions decreased over this period because of three factors: the increased use of more time-consuming comprehensive investigations, a decrease in the number of investigators, and screening of complaints to eliminate those that may not result in violations. Most of these actions (72 percent) were initiated from 1997 to 2007 in response to complaints from workers. The remaining enforcement actions, which were initiated by WHD, were concentrated in four industry groups: agriculture, accommodation and food services, manufacturing, and health care and social services. WHD’s other two types of compliance activities—partnerships and outreach—constituted about 19 percent of WHD’s staff time based on available data from 2000 to 2007.

WHD did not effectively take advantage of available information and tools in planning and conducting its compliance activities. In planning these activities, WHD did not use available information, including key data on complaints and input from external groups such as employer and worker advocacy organizations, to inform its planning process. Also, in targeting businesses for investigation, WHD focused on the same industries from 1997 to 2007 despite information from its commissioned studies on low wage industries in which FLSA violations are likely to occur. As a result, WHD may not be addressing the needs of workers most vulnerable to FLSA violations. Finally, the agency does not sufficiently leverage its existing tools, such as tracking the use and collection of penalties and back wages, or using its hotlines and partnerships, to encourage employers to comply with FLSA and reach potential complainants.

The extent to which WHD’s activities have improved FLSA compliance is unknown because WHD frequently changes both how it measures and how it reports on its performance. When agencies provide trend data in their performance reports, decision makers can compare current and past progress in meeting long-term goals. While WHD’s long-term goals and strategies generally remained the same from 1997 to 2007, WHD often changed how it measured its progress, keeping about 90 percent of its measures for 2 years or less. Moreover, WHD established a total of 131 performance measures throughout this period, but reported on 6 of these measures for more than 1 year. This lack of consistent information on WHD’s progress in meeting its goals makes it difficult to assess how well WHD’s efforts are improving compliance with FLSA.

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