It is no secret that the Department of Labor is ramping up its enforcement arm. In the past year, DOL's budget was substantially increased, and several new investigators were hired to enforce various wage and hour laws. Now, in the wake of hundreds of lawsuits filed across the country alleging FLSA violations on the part of businesses small and large, DOL issued a Notice of Proposed Rulemaking which would dramatically alter the recordkeeping requirements under the Fair Labor Standards Act.
Specifically, DOL proposes to require covered employers to notify workers of their rights under the FLSA and to provide information regarding hours worked and wage computation. In addition, DOL also seeks to require any employer who classifies an employee as exempt to perform a "classification analysis," disclose that "analysis" to the employee, and retain the "analysis" in the event of a wage and hour investigation by DOL. Keep in mind that a wage and hour investigator can come knocking on your door with little or no evidence of any violations, and oftentimes, disgruntled former employees are the reason an investigator comes around. This "classification analysis" would be a new requirement under the law and incredibly burdensome to employers. If adopted, it will likely be used as a tool by plaintiffs and their lawyers to support further lawsuits against companies under the FLSA.
At this point, the Notice is still subjected to public review and comment, and will likely be subjected to strong opposition by the business community. Even if it fails to pass, however, employers must be aware that DOL is paying close attention to wage and hour issues in the workplace and continues to receive funding to fuel its enforcement objectives.
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