All posts tagged 'Right-to-Know-2010'
Up-to-date information on wage-hour principles and developments from
Fisher & Phillips attorneys who focus their practices on these matters.

Nature Of DOL's "Right To Know" Remains Largely Unknown

December 28, 2010 09:16
by John E. Thompson

The U.S. Labor Department's most-recent regulatory agenda now targets April 2011 for the release of a proposed rule that DOL says is intended to, among other things, "update [federal Fair Labor Standards Act] recordkeeping requirements to foster more openness and transparency in demonstrating employers' compliance with applicable requirements to their workers, to better ensure compliance by regulated entities, and to assist in enforcement."  Elsewhere, DOL has stated that this forthcoming "Right To Know Under The Fair Labor Standards Act" would address "notification of workers' status as employees or some other status such as independent contractors, and whether that worker is entitled to the protections of the FLSA."  The proposal would "also explore requiring employers to provide a wage statement each pay period to their employees," apparently so as to convey to employees "how their pay is computed."

These current notifications include even fewer specifics than their predecessors, about which we reported in May.  At that time, DOL expressed an intention to require employers to notify workers of their FLSA rights in some unidentified way and to provide unspecified "information" about hours worked and wage computations.
DOL also said earlier that employers would be required to prepare some sort of "classification analysis" for a worker whom the employer will "exclude . . . from the FLSA's coverage," to disclose this analysis to the worker, and to provide the analysis to a DOL investigator upon "request."  Judging from the latest notices, this is still on the table.  It is less than transparent whether such an analysis would be restricted to situations in which a worker is categorized as being or not being an employee for FLSA purposes.  For example, there is concern that it will also extend to an employer's decisions about which employees it will treat as being exempt from the FLSA's pay requirements.  At a May "Stakeholder Forum" in Washington, D.C., DOL officials declined to address this question.

We continue to recommend that employers remain on the alert for this proposed rule.  When it is published, employers should evaluate each provision in detail, should carefully consider all potential ramifications, and should be prepared to submit suggestions, comments, and any objections.  In light of the recent "Bridge to Justice" initiative, there is every reason to anticipate that information compiled under the requirements of any final regulation will wind up in the hands of claimants and their lawyers.


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Be On Guard For Looming FLSA Recordkeeping Changes

May 18, 2010 12:09
by John E. Thompson

The U.S. Labor Department has now provided additional, disquieting insight into its "Plan, Prevent, Protect" program that we first reported on in our April 30 postPart of DOL's Spring Regulatory Agenda 2010 announces an intention to issue a Notice of Proposed Rulemaking ("NPRM") proposing significant amendments to the FLSA recordkeeping regulations.


There are as yet no details.  But DOL says that its new rules will, among other things, seek to require employers:


•    To notify workers of their FLSA rights (apparently, the longstanding requirement to display DOL's prescribed poster somehow does not accomplish this);


•   To provide currently-unspecified "information" about hours worked and wage computation; and


•    To perform and document some kind of "classification analysis" for a worker whom the employer will "exclude . . . from the FLSA's coverage", to disclose this analysis to the worker, and to provide the analysis to a DOL investigator upon "request".


DOL's amendments will also undertake to "address burdens of proof when employers fail to comply with record and notice requirements."  It will be interesting to see whether and to what extent DOL will presume to instruct the courts as to what proof burdens they must apply and how and when to apply them.


These proposals are likely to raise a host of substantial and troubling questions.    For instance, must a "classification analysis" be done for each worker, rather than simply for a group of similarly-classified ones?  What level of detail will be necessary?  Must the analysis directly or indirectly reflect the advice of in-house or outside counsel so as to implicate the attorney/client privilege?  Must it contain confidential business information where this might be linked to a decision to treat an employee as being exempt from the FLSA's minimum-wage, overtime, and timekeeping requirements?  What assurance will DOL give (indeed, what assurance can it give) that a written analysis turned over in response to an investigator's demand will not be disclosed outside of DOL?


We recommend that employers remain on the alert for this NPRM.  Once the document is published, each proposed amendment and its potential ramifications should be closely scrutinized and carefully considered.  We strongly suspect that there will be provisions as to which comments, and perhaps even strenuous objections, will be advisable before any revisions are adopted.


Keep in mind also that, as we have noted earlier, pending legislation would attach potentially burdensome penalties to an employer's being found not to have complied with whatever any final recordkeeping amendments turn out to be.


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