Trump Department of Labor Continues Their Anti-Worker Agenda

As expected, the Department of Labor (“DOL”) under the direction of trump appointee Alexander Acosta has continued to remake the DOL into a Department of Employee Protection.

The latest attack on workers has been to re-institute “Opinion Letters” which were written and implemented in the waning days of the Bush Administration in January, 2009 and were rescinded in March, 2009 by the Obama DOL. Opinion Letters are essentially the agency giving an “opinion” about a how a particular regulation applies to a specific factual scenario. Usually it is an employer writing to the DOL asking how a regulation will apply to a situation at their workplace. The agency then gives its Opinion in a letter posted on the DOL website. The letters aren’t legally binding. Courts can and will disagree with the Agency’s interpretation if the issue addressed in the Opinion Letter, or one very similar is litigated in court.

In addition, the trump DOL has said it will begin to issue new Opinion Letters in the future, a practice which was stopped under the Obama administration.

These actions are important for two main reasons. One, the Bush administration letters are because of the political nature of the agencies, more management friendly than the broader “Administrative Interpretations” disseminated by the Obama DOL. The second and more important impact re-instituting these Bush era Opinion Letters and the new policy of giving Opinion Letters in the future is the way Opinion Letters can be used by employers to evade liability for violating the Fair Labor Standards Act (“FLSA”) or limiting the amount of liability the employer may have if found to have violated the FLSA.

The Port to Portal Act, an amendment to the FLSA from 1947 gives employers “safe harbors” to violations of the FLSA. 29 U.S.C. § 259(a), provides a complete bar to an FLSA minimum wage or overtime claim if the employer “pleads and proves that the act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation, of the [DOL], or any [relevant] administrative practice or enforcement policy of such agency.” In addition, the employer may be able to avoid liability for violating the FLSA even if the administrative regulation, order, ruling, approval, or interpretation was later determined by a court to be invalid. So following a pro-employer Opinion Letter may allow an employer to avoid liability even if the DOL’s opinion is found to be wrong as long as the employer is found to have a “good faith” reason to believe conforming with the Opinion Letter made the employer’s practice compliant with the requirements of the FLSA.

However, the bar for “good faith conformity” is probably rather high. Because the Opinion Letters address very specific factual scenarios an employer would have to show they had a good reason to believe the scenario at their workplace was the same or very similar to the one addressed by the Opinion Letter at issue.

There is another way employers can use Opinion Letters to reduce their liability for violations of the FLSA even if they can’t escape liability entirely.

The FLSA has a “standard” statute of limitations of two (2) years. But an employer can be held liable for three (3) years of violations if a court believes the violation was “willful”. The FLSA also allows for a court to enforce a penalty for violating the FLSA of double the amount owed for the violation. This is called “liquidated damages”. Like the three year statute of limitations, liquidated damages are only assessed when a court finds the employer’s violation was “willful”.

The new Opinion Letters, and the issuing of more Opinion Letters in the future, will give employers a tool to help prove their violations were no willful and thus only subject to the regular two year statute of limitations and not liable for the liquidated damages penalty. An employer may only need to show an Opinion Letter could be reasonably interpreted to apply to the scenario at issue in their workplace, not even that it is essentially exactly the same, to convince a court the employer was acting in good faith and that it had reasonable grounds for believing that the act or omission was not a violation of the FLSA.

So other than tipping the scales to the side of the employer and making it easier for employers to get away with not following the FLSA, how does this change in DOL policy impact workers? The main takeaway for workers is that now it is more important than ever to speak to an attorney immediately if one believes their employer has not properly followed the FLSA by not paying overtime or the required minimum wage. It might become much harder to get a court to agree the proper statute of limitations for a violation is three years instead of two years so workers can’t afford to wait. Otherwise they risk being unable to hold their employer to account for stealing the wages they are legally owed because more violations may fall outside of the statute of limitations.

If you are in Atlanta or greater Georgia and you believe your employer is not paying you your proper overtime or minimum wage, please contact attorney Benjamin Kandy at The Law Office of Benjamin B. Kandy via phone, email, or the Contact button on the side of this page.


Workers in 18 States are Getting a Raise to Ring in 2018

2017 was a tough one, no joke. I don’t know if it was better or worse than I expected, but it was definitely bad. Republican party control of the entire federal government is the stuff nightmares are made of. The republican controlled agencies which have the biggest impact on America’s workers made a lot of awful decisions in 2017, mostly trying to reverse anything the Obama administration did to help make the American workplace better for the millions of American workers. The republican Congress also did their part, using the Congressional Review Act to overturn regulations implemented by the Obama administration federal agencies in the last couple of months of President Obama’s final term.

There are a lot of bad things to look forward to in 2018. Most notably some cases in the upcoming Supreme Court term which could possibly create drastic changes to the rights of American workers in areas from union representation to the ability of employees to bring class action lawsuits against their employers. I’m sure federal agencies like the Department of Labor and the National Labor Relations Board have some terrible ideas they would like to implement. Not to mention the republican controlled Congress might try to pass some bad laws while the party still controls both chambers.

But I want to start 2018 by celebrating the results of hard won victories which are benefiting workers all across America. In 18 states workers are receiving a well deserved raise because of the efforts activists, unions, politicians, and regular people put in to making their states a better place to live.

Over the last few years a number of states decided to increase their state minimum wage through either legislation passed by the state legislature or through a ballot measure passed by voters. These new minimum wage laws vary from state to state, with the amount of the raise being different depending on the state. However, the minimum wage laws do share some common elements even while the actual dollar amount of the states’ minimum hourly wage may be different.

In 11 of the 18 states the hourly minimum wage increased to a dollar amount specified in the minimum wage law. Many of the states are increasing their minimum wage via incremental steps on the way to a specific dollar amount at some point in the future. For example, Washington State’s minimum wage was increased to $11.50 an hour on January 1, 2018 as part of the move to an eventual minimum wage of $13.50 an hour by January 1, 2020.

Other states are increasing their minimum wage because of provisions in the state minimum wage law which require the wage to adjust based on the rate of inflation. In Florida the state minimum wage was raised to $8.25 an hour as of January 1, 2018 due to an adjustment for inflation.

The best state minimum wage laws combine specific dollar amount increases with adjustments based on inflation. Washington State’s law requires the state minimum wage to adjust with the rate of inflation after 2021, once the minimum wage hits the $13.50 hour target in 2020.

Because of the different mechanisms driving the minimum wage increases in different states, the dollar amount by which the minimum wage increased ranged from a $0.04 increase in Alaska (as part of an adjustment for inflation) to a whole $1.00 an hour increase in Maine due to a ballot measure passed in 2016 which will eventually see the state’s minimum wage increase to $12.00 an hour by 2020. The average increase among all 18 states is $0.41 an hour.  In states where the state minimum wage is being raised to a specific dollar amount the average increase is $0.63 an hour. In states where the minimum wage is increasing because of a required adjustment for inflation the average increase is $0.13 an hour (the yearly inflation rate has been historically low for more than a decade now).

Looking at the 18 states where the minimum wage has been raised so far this year, 10 of them have a republican controlled legislature or at least a republican governor. In Alaska, Arizona, Florida, Montana, Missouri, and South Dakota the minimum wage increase is due to a law implemented via a ballot measure. In Arizona and Colorado the minimum wage law was implemented via an amendment to the states’ constitution. This seems to indicate raising the minimum wage has broad popular support even in states where the republican party controls some, or even all, of the state government.

While is is fantastic to see so many states with different political and economic conditions raising the state minimum wage, that there are only 18 means there are 33 states plus the District of Columbia where the minimum wage didn’t increase at all as of the beginning of this year. Thankfully, some of the 33 states/DC either just increased their minimum wage (Arkansas raised the state minimum wage to $8.50 an hour in January, 2017), or are raising their minimum wage later this year (D.C.’s minimum wage increases to $13.25 in July, 2018 on the way to $15.00 in 2020). But 21 states have a state minimum wage lower than the federal minimum wage of $7.25 an hour. 5 states, all in the south (TN, SC, LA, MS, AL) have no state minimum wage at all meaning the minimum wage is effectively the federal minimum wage of $7.25 an hour. There is still a lot of work to do to make sure all American workers are getting to share in the growth of the American economy.

I hope at the beginning of 2019 I can report every state and district in America is giving their workers a raise by increasing the minimum hourly wage, whether the increase comes from a raise in the federal minimum wage or a raise in (or an introduction of) the state minimum wage. It would be wonderful to also be able to say in 2019 that the minimum hourly wage in every state and district will adjust with the rate of inflation so we never have to see the value of the minimum wage erode over time by the increase in inflation. Right now the $7.25 federal minimum hourly wage has seen a decrease in purchasing power of 10% since it was implemented in 2009. Even better would be to see the minimum wage grow with the rate of the increase in average productivity. If the federal minimum wage increased with average productivity it would be $18.65 as of 2016. Dream big!

To everyone reading this post I hope you have a happy, healthy, and prosperous 2018. If you have a question or concern about anything happening in your workplace please don’t hesitate to contact the Law Office of Benjamin B. Kandy in Decatur, Georgia via email, phone, or through this website.