Bush-style Wage and Hour Enforcement – An Agency Gone Mild

Ever suspect that the Bush administration wasn’t exactly on the side of workers? Ever suspect that DOL Secretary Chao was in the employers’ pocket but have no strong proof?

Well, look no farther than a new report out yesterday from the GAO. When it comes to enforcing wage and hour laws, the DOL was definitely choosing the employer’s pocket – or at least pocketbook – over the worker’s. Indeed, under Chao, the DOL seems to have become a wholly owned subsidiary of the US Chamber of Commerce.


Here is GAO summary of its findings.

GAO found that WHD frequently responded inadequately to complaints, leaving low wage workers vulnerable to wage theft. Posing as fictitious complainants, GAO filed 10 common complaints with WHD district offices across the country. The undercover tests revealed sluggish response times, a poor complaint intake process, and failed conciliation attempts, among other problems. In one case, a WHD investigator lied about investigative work performed and did not investigate GAO’s fictitious complaint. At the end of the undercover tests, GAO was still waiting for WHD to begin investigating three cases — a delay of nearly 5, 4, and 2 months, respectively. . . .

Similar to the 10 fictitious scenarios, GAO identified 20 cases affecting at least 1,160 real employees whose employers were inadequately investigated. For example, GAO found cases where it took over a year for WHD to respond to a complaint, cases closed based on unverified information provided by the employer, and cases dropped when the employer did not return phone calls.

You can hear snippets of the dialogue from test cases here. I especially like their blaming Congress and their telling employees they will get fired if they pursue a complaint. And they just make stuff up.

GAO found that there were serious delays in investigating complaints, something is a real problem for wage cases, because of the structure of the Fair Labor Standards Acts statute of limitations.

Because the statue of limitations to collect back wages under FLSA is 2 years, WHD is placing complainants at risk of collecting only a fraction of the back wages they would have been able to collect at the time of the complaint.

GAO also found that complaints they made were never recorded in DOL’s data base.

Five of our complaints were never recorded in WHD’s database. These complaints were filed with four different field offices and included three complaints in which WHD
performed no investigative work and two complaints in which WHD failed to record the investigative work performed.

The fact that they were not recorded in different field offices suggests that there was a national policy or practice. Failure to record complaints affects the agency’s statistics and in turn affects funding. It suggests that problems are lower than they really are. It also suggests that funding is adequate at lower levels than is actually needed.

Some of the test complaints involved children doing work under dangerous conditions, situations the DOL WHD is also supposed to investigate and prosecute.

GAO also found that the agents actively refused to pursue claims and tried to force callers to use other means if they wanted any relief, such as calling their congressional representative’s office or hiring a lawyer and filing a private case, something that a worker in these situations is unlikely to have the means to do. GAO also found that the process of taking complaints is so recondite (my term) that it actively discourages workers from pursuing complaints. And in some cases the WHD agents actually lied.

In one case, WHD failed to respond to seven messages from our fictitious complainant, including four messages left in a single week. In other cases, WHD delayed over 2 weeks in responding to phone calls or failed to return phone calls from one of our fictitious employers. At least two WHD offices have no voice mailbox for the office’s main phone number, preventing complainants from leaving a message when the office is closed or investigators are unavailable to take calls. One of our complainants received conflicting information about how to file a complaint from two investigators in the same office, and one investigator provided misinformation about the statute of limitations in minimum wage cases. At one office, investigators told our fictitious employee that they only accept complaints in writing by mail or fax, a requirement that delays the start of a case and is potentially discouraging to complainants. In addition, an investigator lied about contacting IRS to determine the annual sales for our fictitious employer, and then told our complainant that his employer was not covered by the FLSA.

The GAO study includes many, many more details of an agency that, under Secretary Chao bent over backwards to protect employers and failed in its mission to protect workers’ pay and children pressed into doing dangerous work.

It is a record of an agency gone mild.

The report is Department of Labor: Wage and Hour Division’s Complaint Intake and Investigative Processes Leave Low Wage Workers Vulnerable To Wage Theft GAO-09-458T, March 25, 2009

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