Prima Facie Law Blog : Labor & Employment Lawyer & Attorney : Epstein Becker & Green Law Firm : ADEA, Discrimination, Title VII

By Brian Molinari and Doug Weiner

The Department of Labor’s Semiannual Regulatory Agenda (pdf) reported in the Federal Register on April 26, 2010 contains several agenda items under the Fair Labor Standards Act (FLSA) that employers should note.  Highlighted below are some key ones. (Note: this posting is not intended as a comprehensive summary the DOL's Agenda, which spans 49 pages and lists all regulations that are expected to be under review or development between April 2010 and April 2011.

Record-Keeping

Section 11 of the FLSA requires employers to keep specified records of the hours employees work, and the wages they are paid.  We previously reported on DOL's stated intention to update the FLSA’s record-keeping regulations, which specify the scope and manner of records covered employers must keep that demonstrate compliance with minimum wage, overtime, and child labor requirements under the FLSA, and the records to be kept that would confirm applicability of particular exemptions.  A Notice of Proposed Rulemaking (NPRM) is scheduled to be released in August 2010. 

According to DOL, this rule proposal will:

• update the 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.
• update the recordkeeping requirements applicable to certain domestic employees and to modernize the requirements, consistent with the increasing emphasis on  "flexiplace" and telecommuting, to allow for automated or electronic recordkeeping systems instead of the mandatory manual preparation of “homeworker” handbooks currently required for all work that an employee may perform in the home.

We will, of course, track whether and to what extent the record-keeping regulations are updated.  However, irrespective of regulatory requirements, it's almost always in an employer's best interest to have an accurate and effective record-keeping policy and practice in place not just confirming hours worked and wages paid, but also descriptions of employees' job duties confirming applicability of any exemptions.  The public will be invited to provide comments on the proposed revisions and possible alternatives.

Domestic Service Workers

We previously reported on the apparent plausibility of DOL revisiting and repealing the domestic service exemption. With respect to the current exemptions for domestic employees engaged in providing companionship services (29 U.S.C. 213(a)(15)) and for live-in domestic employees (29 U.S.C. 213(b)(21)), the DOL 's Agenda identifies a "long-term action" of updating the regulations at 29 CFR part 552 in light of significant changes in the home care industry.  A Notice of Proposed Rulemaking is scheduled to be released in October 2011.

Specifically, DOL states that there is a need to examine: (i) the definition of companionship services; (ii)  the criteria used to assess whether employees qualify as "trained personnel" (companionship services are currently defined to not include services performed by trained personnel such as registered or practical nurses); and (iii) the applicability of the exemption to third party employers.  You may recall that the Supreme Court in Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007) held that DOL was within its authority to promulgate regulations that include employees who provide "companionship services" as falling within the terms of the statutory exemption irrespective of whether the employee is paid directly by a household or a third-party employer.  Given the stated intentions of DOL, and the FLSA's historic tendency to classify less skilled/trained/educated workers as non-exempt, it is likely that DOL will exercise its rulemaking authority to significantly reduce the scope of the domestic service exemption.

Child Labor Health and Safety

We previously reported on increased child labor penalties and DOL's special focus on child labor safety.  The DOL is now at the " final rule " stage of continuing to review regulations to ensure that job opportunities for working youth are healthy, safe, and not detrimental to their education, as required by 29 U.S.C. sections 203(l), 212(c), 213(c), and 216(e)). This final rule will update the regulations to reflect statutory amendments enacted in 2004, and will propose, among other updates, revisions to address several recommendations of NIOSH in its 2002 report to the DOL on the child labor Hazardous Occupations Orders. The DOL has assessed that updating child labor regulations issued under the FLSA will help meet the challenge of ensuring good jobs that are safe, healthy, and fair for the Nation’s working youth, while balancing their educational needs with job-related experiences that are safe. Final action is expected by the end of this month.

In the coming months, we will continue to review DOL's rulemaking progress, and update our readers.

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Hazardous occupations are no place for employees under the age of 18. Employers must be certain to prohibit minors from operating power driven wood working machines, metal working machines, bakery machines, fork lifts, balers and compactors, meat slicers, and nail guns. The full list of hazardous occupations are set forth in the Code of Federal Regulations, 29 C.F.R. 570, et. seq.  Protecting America’s children in the workplace has long been a stated objective of the U.S. Department of Labor, and the civil money penalties for serious violations have recently been strengthened.

On January 20 the Labor Department’s Wage and Hour Division issued guidelines to enforcement personnel for determining appropriate civil money penalties against employers who violate the child labor provisions of the Fair Labor Standards Act. As stated in Field Assistance Bulletin 2010-1, the guidelines “draw heavily on the child labor civil money penalty process the WHD [Wage Hour Division] has developed over the past 25 years.” In addition, there is new advice resulting from the FLSA amendments that became effective May 21, 2008 with the enactment of the Genetic Information Nondiscrimination Act (GINA).

The DOL has created a Child Labor Enhanced Penalty Program (CLEEP) to incorporate GINA’s stiffer penalties. A “CLEEP serious injury” is defined as one caused by a child labor violation resulting in a permanent loss or substantial impairment of one of the senses, or of the function or movement of specified body parts. The bulletin identifies categories of injuries, and provides higher penalties for more serious injuries.

GINA included an amendment to the FLSA, 29 U.S.C. 216(e), providing a penalty of $50,000 for a violation causing death or serious injury to an employee under the age of 18. The penalty may be doubled to $100,000 if the violation is willful or repeated. Prior to GINA’s amendment, the maximum child labor civil money penalty was $11,000.

For GINA’s enhanced penalties to be applicable there must be evidence to prove the violation of a specific Child Labor Hazardous Order directly caused the death or serious injury of an employee under 18. The January 20 Field Assistance Bulletin sets forth detailed examples of violations that cause injuries as opposed to injuries that occur while employed in violation of a child labor hazardous order.

Of course no one wants an accident to occur to anyone at any time. However, in light of the DOL’s increased enforcement authority in the area of child labor, employers are well advised to verify the ages of their employees. If an employee is under the age 18, it is mandatory to ensure they are not permitted to engage in any prohibited activities.
 

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