News that some of the nation's preeminent homebuilders have received information demands from the U.S. Labor Department under the federal Fair Labor Standards Act has drawn a variety of unhappy reactions.  But whatever one thinks about the wisdom, appropriateness, timing, or manner of DOL's move, the fact is that the administration has had the construction industry in its FLSA sights for some time now.

As we reported in May 2010, even then DOL had identified construction as being among what it calls "fissured" industries.  Officials use this term to refer to business arrangements that in DOL's view cloud the realities of the employment relationship so as to dilute the responsibility for FLSA compliance.

It is therefore likely that one important purpose of DOL's homebuilder initiative is to develop a baseline of industry- and company-specific structural information that is relevant to FLSA compliance.  For instance, investigators will no doubt be looking into whether ostensibly-separate corporations, partnerships, sole-proprietorships, and the like serving as different components in or layers of construction projects are truly independent businesses, or whether they are instead so integrated with one another as to be a single, overall enterprise.

DOL will also be delving into the extent to which even truly distinct and separate entities nevertheless collaborate about or exercise control over the workers on construction projects.  It will be doing this to judge whether each such entity is a "joint employer" of some or all of those workers so as to share individual and collective responsibility for complying with the FLSA where those workers are concerned.  This can be the case if, for example, a worker's efforts simultaneously benefit those entities under circumstances in which:

◊   There is an arrangement between or among the entities to share or interchange the worker's services;

◊   One entity is acting directly or indirectly in the interests of one or more others in relation to the worker; or

◊   The entities "are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with" one or more others.

See 29 C.F.R. Part 791.  Courts tend to evaluate the joint-employment question under factors that mostly boil down to variations on these themes.

Obviously, DOL will also be investigating whether the targeted employers have been following the FLSA's minimum-wage, overtime, recordkeeping, and child-labor requirements and restrictions.  This will include evaluations of whether these employers have erroneously treated some employees as being exempt or have misclassified employees as being "independent contractors".

Construction contractors subject to federal prevailing-wage and fringe-benefits requirements should also assume that investigators will be alert for any non-compliance with the Davis-Bacon Act or the Contract Work Hours And Safety Standards Act.

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Indications are that the U.S. Labor Department will be stepping-up its investigative activity among employers who are subject to federal prevailing-wage and fringe-benefits requirements.  Comments made at the agency's ongoing series of Prevailing Wage Conferences currently being held across the country suggest that its enforcement activity could rise by more than 80% in the near future.

The number of employers performing work subject to the Davis-Bacon Act and "Related" Acts, the Service Contract Act, the Contract Work Hours and Safety Standards Act, and a variety of other provisions has grown steadily over the last several years.  The proportion of companies taking on Davis-Bacon Act obligations in particular spiked dramatically beginning in 2009, as American Recovery and Reinvestment Act stimulus measures began to fund or assist various projects or to facilitate the funding of projects through certain tax-favored bonds.

During this same time, staffing levels at DOL's National Office have been beefed-up substantially in these areas.  Moreover, DOL has been adding hundreds of new investigators since early 2009, and senior officials believe that these investigators are now seasoned enough to begin to take on additional training and enforcement responsibility in this specialized field.

DOL will also be prepared to investigate complaints of non-compliance brought by an employer's competitors or by other third-parties.

Every employer that is doing business with the federal government as a contractor or subcontractor or in some other way, or that is involved in work funded through federal grants, loans, loan guarantees, tax-favored bonds, or financial aid of other kinds, should take immediate steps to confirm that it is complying with all applicable requirements.

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