WHD Web Chat on Regulatory Agenda Provides Few Answers

Despite the flurry of questions posed to the Deputy Administrator of the Wage and Hour Division (WHD) during Thursday’s live web chat on the WHD’s regulatory agenda, Nancy Leppink kept her responses vague and noted that many regulatory proposals were still under development and therefore not ripe for discussion. For example, many chat participants sought clarification and insight regarding the agency’s intent to propose regulations that would modify the “companionship services” exemption under the Fair Labor Standards Act (FLSA), thereby subjecting many home care workers to the Act’s minimum wage and overtime requirements. Leppink said that the notice of proposed rulemaking (NPRM) on this topic is not scheduled to be issued until October, and therefore any in-depth response would be premature.

Leppink similarly avoided direct responses to questions about the agency’s worker misclassification initiatives. She noted that by April 2011, the WHD intends to publish a proposed rule updating the recordkeeping regulation issued under the FLSA “to assist employers in planning to protect workers' entitlement to wages that they have earned and bring greater transparency and openness to the workplace.” According to Leppink, the proposal would address notification of workers' status as employees or some other status such as independent contractors, and state whether that worker is entitled to the protections of the FLSA. Leppink also said the WHD is “exploring” whether to require employers to provide a wage statement each pay period to their workers.

Leppink was also asked about the process and type of information that will be provided to plaintiffs’ attorneys under the new DOL-ABA attorney referral. In response, Leppink stated that WHD and the American Bar Association have announced an unprecedented collaboration providing for an Attorney Referral System. When FLSA or FMLA complainants are informed that the WHD is declining to pursue their complaints, they may also be given a toll-free number to contact the newly created ABA-Approved Attorney Referral System. In addition, Leppink said that WHD will provide prompt relevant information and, where available, documents on the case may be provided to complainants and representing attorneys, but she provided no further details on the program.

Additionally, Leppink said that the agency is currently conducting directed investigations and increasing its presence in a number of key industries where, she claims, worker misclassification is most prevalent: construction; janitorial; home health care; child care; transportation and warehousing; meat and poultry processing; and other professional and personnel service industries.

With respect to another item on the WHD’s regulatory agenda, Leppink said she anticipates the issuance of a final rule addressing a number of statutory amendments and proposed changes to several different FLSA regulations “soon.” 

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.