“There’s a new sheriff in town.” For the past year, U.S. Secretary of Labor Hilda Solis has proclaimed this from podiums across America, vowing more aggressive enforcement of federal workplace laws. Yet, despite her promise to “put enforcement back in the Department of Labor,” statistics from the first year of the Obama administration do not indicate a dramatic shift toward enforcement. In fact, in a number of agencies within the Department of Labor (DOL), enforcement appears to have decreased, with lower back wage recoveries than in the final years of the Bush administration.
However, the numbers only tell part of the story. The department, which operated without its chief enforcement officer —the solicitor of labor—for the entire first year, has been on a hiring spree. Last year, Solis hired more than 300 people—including 293 investigators—for the Wage and Hour Division (WHD) alone. One hundred investigators were hired and 33 senior investigators were promoted using funds from the American Recovery and Reinvestment Act of 2009, with the goal of ensuring “that contractors on stimulus projects funded under the Recovery Act are in compliance with the applicable laws.”
The hiring spree is far from over. This year, WHD plans to hire at least an additional 110 investigators, and the department’s 2011 budget requests authority to hire 90 more investigators. All told, by 2011, WHD intends to have more than 1,000 investigators on staff, an increase of more than 35 percent from 2008 staffing levels. Similar staffing increases can be expected throughout the DOL’s enforcement agencies, as the 2011 budget requests a total of $1.7 billion for workplace enforcement.
The White House Task Force on the Middle Class recently identified an outline of the enforcement and policy agenda:
- providing “green jobs” training;
- encouraging the use of project labor agreements;
- focusing on improper classification of workers as independent contractors;
- supporting “responsible government contracting” (i.e., “high road” contracting); and
- advocating the enactment of the Employee Free Choice Act.
2011 Budget Indicates Priorities
WHD will continue its activities in the government contracting arena, noting the multi-billion dollar federal investment in construction through the Recovery Act will require increased resources to enforce applicable labor laws in the construction industry. The department places a specific emphasis on prevailing wage (i.e., Davis-Bacon) enforcement. Moreover, WHD plans to increase the speed at which it updates prevailing wage determinations under the Davis-Bacon Act, resulting in higher wage rates on government construction projects.
In addition, WHD plans to conduct investigations in connection with the H-2B temporary worker visa program. Under this initiative, WHD will investigate employers that actually use the H-2B program, as well as employers in industries in which non-immigrant workers are likely to be employed. Among the five or six industries identified for targeted investigations are construction, hospitality and landscaping.
Another significant priority is the Joint Department of Labor-Treasury Independent Contractor initiative. This initiative seeks to identify individuals improperly classified as independent contractors and ensure they receive appropriate employment benefits and protections. In addition, the initiative seeks to coordinate federal and state enforcement efforts, as well as prevent or recover losses to the U.S. Treasury and the Social Security, Medicare and Unemployment Insurance Trust Funds resulting from the misclassification of workers.
In addition, the department’s 2011 budget indicates it plans to allocate $11.25 million to provide competitive grants to increase states’ enforcement capacity and to reward the states that are most successful at detecting and prosecuting employers that fail to pay their share of taxes due to improper classification.
An additional $1.6 million and 10 attorneys will be added to pursue misclassification litigation, including multi-state litigation to coordinate enforcement with state agencies. The Occupational Safety and Health Administration will receive $150,000 to modify investigation guidelines to allow its inspectors to identify potential employee misclassification and to share information with WHD.