On March 27, 2012, members of The Florida Bar Labor & Employment Law Section Wage & Hour Administration Liaison Subcommittee participated in a conference call with representatives from the U.S. Department of Labor Wage-Hour Division’s Jacksonville District Office. The purpose of the call was to gain insight into the DOL’s strategic plans for 2012.
Employers who are in any of the following industries should be aware that the DOL has your business on their radar:
- residential construction industry – the DOL will be targeting subcontractors on these projects (all trades are subject to review)
- agricultural industry
- limited food establishments – i.e., restaurants which focus on a singular food items (like subs, chicken wings, etc.) – which typically serve a high volume of tourists and which employ a transient work force
- projects covered by the Davis-Bacon Act
- industries employing a high volume of independent contractors (such as the cable TV industry, construction industry, etc.), which are notorious for misclassification
- inSouth Floridaparticularly, the DOL’s “white table cloth” initiative will target upscale restaurants which allow servers to retain all their tips but pay no hourly wages
The DOL is also seeking to expand its pilot program for the collection of liquidated damages (LD) during the investigative process and sees the imposition of LD as a reasonable deterrent to future violations. The DOL will be seeking to impose LD on employers who should have known that a violation has occurred or where a reasonable person would know there has been a violation of law. The likelihood of LD is even greater when the employer is a repeat violator. Nonetheless, the DOL will negotiate certain reductions, particularly when the employer enters into an agreement to pay back wages. The DOL has sought to involve the solicitor in investigations when the intent is to impose LD.
Another hot topic for the DOL is tip pools. The DOL has engaged in wholesale invalidation of tip pools when any portion of the pool is co-opted by the employer. The DOL has imposed a near zero-tolerance policy when it perceives the tip pool has been tainted in any way, shape or form.
Given the DOL’s intentions and the meteoric rise of wage & hour lawsuits throughout the State of Florida, employers are wise to consult with skilled legal counsel to ensure that employees (and independent contractors) are properly classified as such, that employees are properly classified as exempt/non-exempt, that non-exempt employees are being paid overtime, that systems are in place for accurate record-keeping, that the employer’s payroll practices comply with the law, that tip pooling arrangements are valid and well-documented, and that wages are being paid at the proper rates.
Ellen M. Leibovitch, Esq. – Board Certified in Labor & Employment Law by teh Florida Bar
ASSOULINE & BERLOWE, P.A.
With Offices in Miami, Ft. Lauderdale, and Boca Raton