The wage and hour laws are complicated, and rarely intuitive. Technical violations of wage and hour laws are so common that no company can be absolutely positive that it is complying with all Department of Labor regulations, and the laws and regulations of states and local jurisdictions.
In fact, these laws and regulations are so complicated that even the investigators hired to enforce them often interpret them incorrectly. There are statutes, regulations, interpretation letters, internal memoranda, guidance directives, and caselaw that must be taken into account. Very few of these investigators have law degrees, and having a law degree is no guarantee that you understand record keeping requirements, overtime exemptions, hours of work interpretations, and limits on employee agreements to “work around” these impediments to logical wage practices.
In addition to having to enforce complicated laws, these investigators often have a bias against employers and toward employees. Very few people go to work for the Department of Labor with the goal of protecting employers from bad employees or unfair laws. Instead, they tend to favor interpretations that favor employees, and in many instances, they zealously try to enforce those interpretations regardless of cogent arguments that they are wrong.
In a rare display of government interest in “how it is doing,” Cheryl Marie Stanton, Administrator of the Wage and Hour Division at the Department of Labor, has asked for feedback on bad investigators, namely, those who are applying the law incorrectly. It is being reported that Stanton made this comment recently during a conference call hosted by the Federalist Society. In essence, she asked the attorneys on the call to report investigator “misconduct” up the chain of command.
Stanton, while encouraging enforcement of wage and hour laws, emphasized the need for fair enforcement of these laws. She seemed to acknowledge that sometimes investigators go too far and just plain get it wrong in an attempt to find companies at fault in wage and hour matters. Let’s hope it works.
While there is a risk to confronting a government investigator, there are bigger risks from giving into incorrect interpretations of the law. Whether it’s a wage and hour audit, OSHA inspection, EEOC charge, or any other government investigation, a little push back can frequently level the playing field. At least one government administrator supports that push back.