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Division of Fair Labor Standards (FLS)

MISSION AND FUNCTION: "Labor Standards," the basic protections established by Federal law for workers, is the unifying theme of this Division's work. The Fair Labor Standards Division provides litigation and other legal services for the Wage and Hour Division, Employment Standards Administration and the Office of Investigative Assistance in the Occupational Safety and Health Administration (OSHA).

STATUTES: In the wage and hour area, this Division's statutes include those that require the payment of minimum wages and overtime premium pay for workers generally (the Fair Labor Standards Act), and prevailing wages and overtime pay for contractors on government contracts (the Davis-Bacon and Related Acts, the McNamara-O'Hara Service Contract Act, the Walsh-Healey Public Contracts Act, and the Contract Work Hours and Safety Standards Act). The Fair Labor Standards Act also sets standards for the employment of youth; the Migrant and Seasonal Agricultural Workers Protection Act sets standards for pay, housing, and transportation for migrant and seasonal farm workers; the Employee Polygraph Protection Act provides protection to employees and job applicants from illegal polygraph tests; the Family and Medical Leave Act requires employers to provide eligible employees with 12 weeks of family or medical leave on a yearly basis, with medical benefits and reinstatement rights; the Consumer Credit Protection Act protects employees' pay from excessive garnishments. The Division provides services regarding certain provisions of the Immigration and Nationality Act, especially special visa programs for nonimmigrant aliens entering the U.S. for employment in agriculture, and specialty occupations.

In the OSHA area, this Division's statutes include the employee protection ("whistleblower protection") provisions of several environmental protection statutes, the Energy Reorganization Act (regulating the nuclear power industry), the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (regulating aviation safety); Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley Act of 2002 (regulating corporate accountability); and Section 6 of the Pipeline Safety Improvement Act of 2002. These statutes protect employees who provide information about possible violations from retaliation by their employers.

DESCRIPTION OF DUTIES: The Division's attorneys handle a variety of duties, including appellate litigation; occasional trial litigation; regulation writing and review; legislative services; and legal advice on a variety of issues affecting the interpretation and enforcement of the aforementioned statutes. The staff attorneys generally engage in all the functions of the Division (rather than receiving assignments only within a particular subject area). They normally receive individual assignments from each of the Division's counsels, the senior attorneys, and sometimes directly from the Associate and the Deputy Associate Solicitor. There is limited travel, usually averaging one to three overnight trips per year.

The Division's appellate litigation, conducted before the U.S. courts of appeals and the Department's Administrative Review Board ("ARB"), encompasses the analysis of trial records, the preparation and filing of briefs, and the presentation of oral arguments. The appellate practice before the U.S. courts of appeals includes prosecuting and defending appeals from the U.S. district courts as well as defending decisions by the ARB. The Division's litigation program also involves monitoring private litigation under the Division's various statutes to determine whether the Department's participation as amicus curiae ("friend of the court") is appropriate.

Examples of some recent appellate cases include:

    • In IBP, Inc. v. Alvarez, No. 03-1238, and Tum v. Barber Foods, Inc., No. 04-66, the Supreme Court unanimously concluded that, under the Fair Labor Standards Act as amended by the Portal-to-Portal Act, employees who work in meat and poultry processing plants must be paid for time spent walking between the place where they put on or take off protective equipment and the place where they process the meat. The Court thereby agreed with the position the Solicitor General took in the cases, which is consistent with the position the Department of Labor took as an amicus in the courts of appeals. The Court also concluded in Tum, however, that although employees should be paid for time waiting to take off their protective equipment, they should not be paid for time waiting to put on the equipment. The Court's waiting time decision is narrow, however, and preserves a Department of Labor regulation that treats waiting time as compensable if an employer, unlike the employer in Tum, requires its employees to report to work at a specific time.
    • In Belt v. EmCare, No. 05-40370, the Division filed an amicus brief in the Fifth Circuit supporting the employees' position that the district court correctly concluded that physician assistants and nurse practitioners must be paid on a salary basis in order to be exempt learned professionals under the FLSA regulations at 29 CFR, Part 541.
    • In Taylor v. Progress Energy, No. 04-1525, an FMLA case, the Division filed an amicus brief on rehearing in the Fourth Circuit supporting the employer's argument that a FMLA regulation does not bar an employee from settling a past FMLA claim without the Secretary's supervision or a court's approval, but only bars the prospective waiver of FMLA rights. The appellate panel had held that all private FMLA settlements must be either approved by a court or supervised by Wage-Hour.
    • Anderson v. U.S. Department of Labor and Metro Wastewater Reclamation District, 422 F.3d 1155 (10th Cir. 2005), presented the question of whether a politically appointed member of Metro's Board of Directors was an "authorized representative of employees" entitled to protection under certain environmental whistleblower statutes. The Tenth Circuit affirmed the ARB's decision in its entirety. It concluded that Anderson could not, as a matter of law, represent any employees "because she was legally required to represent the citizens of Denver, not any particular segment of society or a particular interest group." The court further concluded that substantial evidence supported the ARB's conclusion that Anderson failed to show that she was actually authorized to represent any employees.
    • In Bechtel v. Competitive Technologies, Inc. (CTI), No. 05-2404, the Division filed a brief as intervenor in the United States Court of Appeals for the Second Circuit, to defend a district court decision that enforced a preliminary reinstatement order under the whistleblower provision of the Sarbanes-Oxley Act (SOX). The district court granted an injunction enforcing an OSHA order that required CTI to immediately reinstate two complainants to their former positions, with back pay, while the Department adjudicates the merits of their complaints of retaliatory discharge. The brief argued that the SOX whistleblower provision gives the district court authority to enforce the preliminary reinstatement order, that CTI received due process during OSHA's investigation and the subsequent review proceedings, and that the district court properly enforced OSHA's order without requiring the Secretary and complainants to establish the traditional injunction factors.

The Division's trial litigation mainly involves the active support of the Regional Solicitors and the Department of Justice in trials before U.S. district courts and Department of Labor administrative law judges. The Division also directly litigates district court and administrative cases deemed to be particularly significant or sensitive. An example of recent litigation includes:

    • In Abhe & Svoboda, Inc. v. Chao, C.A. No. 04-1973 (JR) (D.D.C.), attorneys in the Fair Labor Standards Division assisted the United States Attorney in defending in the United States District Court for the District of Columbia an important decision by the Department's Administrative Review Board, concerning the proper classification of workers under the Davis-Bacon provisions of the Federal Aid Highway Acts, a Davis-Bacon Related Act.

The Division's advice and regulatory functions encompass issues and programs under all the statutes within the Division's jurisdiction. Examples of regulatory and advisory matters include:

    • Updated regulations in Part 541 of Title 29 of the Code of Federal Regulations promulgated under section 13(a)(1) of the Fair Labor Standards Act are intended to clarify the overtime exemptions applicable to executive, professional, and administrative employees.

Among numerous opinion letters reviewed, a recent opinion letter addresses the question whether insurance claims adjusters qualify for the administrative exemption from overtime pay under section 13(a)(1) of the Fair Labor Standards Act. The August 2005 opinion concludes, after analysis of relevant case law and the revised regulations at 29 C.F.R. Part 541, that the FLSA requires that claims adjusters (claims specialists I) who do not exercise discretion and independent judgment in matters of significance are covered by minimum wage and overtime provisions of the FLSA, while those who exercise the requisite discretion and independent judgment in matters of significance (claims specialists II and senior claims specialists) qualify for the administrative exemption.

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