Wage & Hour Defense Blog : Wage & Hour Lawyer & Attorney : Epstein Becker Green Law Firm : DOL Enforcement, FLSA Coverage

By Michael Kun

Employers who do business in California are already well aware of the wage-hour class actions that have besieged employers in virtually every industry.   Class claims for misclassification of employees as exempt employees or independent contractors first began to be filed more than a decade ago, and continue to be filed on a daily basis.  Claims for alleged work off-the-clock and missed meal and rest periods by non-exempt employees generally began later, but continue to be filed at an alarming rate. 

Now we can add to those cases a new wave of California class actions, alleging that employees have been denied “suitable seating,” as required by various Industrial Welfare Commission Wage Orders.  News of two recent Court of Appeal decisions permitting such claims has spread among the plaintiffs’ bar, which is now filing such claims against retailers throughout the state.  Other industries where employees frequently are on their feet, particularly the hospitality industry, are soon to follow.

Making matters worse, the Wage Orders with which employers are expected to comply only provide generally that “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”  Nowhere in the Wage Orders or elsewhere are the phrases “suitable seats,” “nature of the work” or “reasonably permits” defined. 

Much like the law regarding meal and rest periods (which continues to be uncertain as the California Supreme Court delays in issuing its long-awaited decision whether such breaks must be “ensured” or need only be “made available”), it seems inevitable that the law regarding suitable seating is going to play out in the courts, and just as inevitable that class action after class action will be filed as the law remains vague and confusing.

And those class actions will not be small ones.  Under California’s Private Attorneys General Act, each employee could recover up to $100 for the initial pay period in which there is a violation, and up to $200 for each subsequent pay period. 

Employers would be wise to get ahead of the proverbial curve on this issue, reviewing the working conditions of their employees and making seats available where possible. 

by Kara Maciel

Once again, the U.S. Department of Labor is requesting additional funding from Congress in its 2012 budget proposal to increase its efforts toward regulation and enforcement of wage and hour and employment laws.  While the DOL’s budget proposal would reduce its overall discretionary spending by 5%, the budget cuts will not affect the staff and resources that enforce wage and hour laws.  Instead, the Wage and Hour Division is asking for $241 million – an increase of $13.3 million from last year’s estimated budget. 

In particular, the Wage and Hour Division is seeking to add 107 full-time staff to support the DOL’s initiative against misclassification of independent contractors and other labor violations arising from misclassification.  Along with the budget and staff increases, the DOL expects its investigations to increase as well in 2012.  According the DOL’s budget summary, the DOL is planning on conducting an additional 3,250 investigations.  These investigations will target industries with higher rates of violations, including:

· Construction

· Home health care

· Grocery stores

· Janitorial businesses

· Poultry and meat processing

· Child care

· Business services

· Landscaping

The Wage and Hour Division is also developing a proposed rule to update the FLSA’s recordkeeping requirements which would require employers to notify their workers of their rights under the FLSA.  The proposed rule would essentially require employers to perform a written classification analysis for exempt employees and share that analysis with the worker.

Notably, the DOL is also seeking $23 million to help states establish paid leave programs to help workers who must take time off to care for a seriously ill child, spouse, parent or bond with a newborn or recently adopted child.

Despite the budget showdown that is currently taking place in Congress and the fact that Congress still has yet to approve the budget for Fiscal Year 2011, the DOL’s 2012 budget request is a strong indication that employers should continue to be vigilant and prepare for increased enforcement efforts from the DOL and the Wage Hour Division.