On February 13, 2012, Labor Solicitor M. Patricia Smith spoke at a seminar at the Practising Law Institute. She stated that the DOL was focused on aggressively making rules rather than issuing guidance. As an example, the DOL proposed new rules which would all but eliminate the “companionship services” exemption. The proposal would give most home health care workers the right to receive minimum wage and overtime. Comments to this proposal are due on or before February 27, 2012.
She did admit that the issue of requiring employers to notify employees in writing of their exempt status had “slipped off the regulatory agenda” based on workload because of the aggressive rulemaking plans of the DOL. Ms. Smith also answered questions about cooperation with the IRS on the issue of improper classification of workers as contractors noting that the DOL has referred employers to the IRS on this issue. She further discussed specific industries including
the restaurant and construction industries as ones where the DOL sees a significant amount of workers improperly classified as contractors.
This focus on rulemaking rather than guidance to employers demonstrates the DOL continues to actively President Obama’s agenda. When he took office the DOL vowed to pursue unpaid minimum wage and overtime especially on behalf of those in low paying jobs.
This means that ensuring compliance with the Fair Labor Standards Act remains a high priority. We recommend that employers conduct audits under the direction of legal counsel to ensure that they know where their risks are and work to correct those before the DOL finds you.
