WASHINGTON, DC – The U.S. Department of Labor today announced plans to undertake new rulemaking with regard to overtime.

On July 26, 2017, the Department of Labor published a Request for Information (RFI) regarding the Overtime Final Rule, which was published on May 23, 2016, asking for public input on what changes the Department should propose. That comment period has ended and the Department is reviewing those submissions.

On August 31, 2017, U.S. District Court Judge Amos Mazzant granted summary judgment against the Department of Labor in consolidated cases challenging the Overtime Final Rule. The court held that the Final Rule’s salary level exceeded the Department’s authority, and concluded that the Final Rule is invalid.

On October 30, 2017, the Department of Justice, on behalf of the Department of Labor, filed a notice to appeal this decision to the U.S. Court of Appeals for the Fifth Circuit. Once this appeal is docketed, the Department of Justice will file a motion with the Fifth Circuit to hold the appeal in abeyance while the Department of Labor undertakes further rulemaking to determine what the salary level should be.

GRAND RAPIDS, MI – The U.S. District Court in Western Michigan has entered a consent judgment resolving violations of the Family and Medical Leave Act (FMLA) found at two Michigan nursing homes by the U.S. Department of Labor’s Wage and Hour Division. The nursing homes are Pine River Healthcare LLC, which operates as Pine River Healthcare Center, and Fremont Healthcare LLC, which operates as Transitional Healthcare Service of Fremont.

Wage and Hour Division investigators found both nursing facilities failed to inform employees that their conditions potentially qualified for FMLA leave and failed to provide notice and information to employees on the FMLA. The nursing homes assessed attendance points to and/or disciplined employees who exceeded absence limits while missing work for potentially FMLA-qualified reasons and required employees to make arrangements with other workers to cover their shifts when absent.

The order requires the nursing homes to provide workers with timely information about their right to request FMLA leave and to train supervisors and administrators on the law’s requirements. Additionally, the nursing homes will train head floor nurses and human resource administrators on the qualifying reasons for FMLA, how to recognize and respond to information from employees that indicates a potential need for FMLA leave, and how to provide FMLA notification. Employees will also receive FMLA fact sheets.

“The Family Medical Leave Act provides workers protection to attend their own medical appointments, and to care for family members without risking their jobs,” said Wage and Hour Division District Director Mary O’Rourke, in Grand Rapids. “Our education and outreach efforts continue to ensure that employers understand their responsibilities.”

Both facilities are operated by Consulate Healthcare of Maitland, Florida, which manages more than 200 facilities nationwide.

Workers and employers with questions about the FMLA and all of the federal wage laws administered by the Division should call the agency’s toll-free helpline at 866-4US-WAGE (487-9243). All calls are confidential.  More information is available online at http://www.dol.gov/whd/.

Case number: 2:17-cv-12321

BLUE SPRINGS, MO – The U.S. Department of Labor’s Wage and Hour Division and a Blue Springs buffet restaurant have reached an agreement to resolve violations of the Fair Labor Standards Act (FLSA). The Wage and Hour Division determined Blue Springs-based Legend of Asia and its manager, Yu Min Xiao, failed to comply with FLSA minimum wage, overtime, and record-keeping provisions.

As a result, 17 workers will receive a total of $150,000 – representing $75,000 in back wages and an equal amount in liquidated damages. The restaurant will also pay a civil money penalty of $10,000 for willful violations.

Investigators found the employer paid cooks a monthly salary and provided them housing, meals, and transportation. Given the number of hours the restaurant required cooks to work, their compensation did not equal at least the minimum wage, and overtime was not paid when they worked more than 40 hours in a workweek. The employer also failed to pay servers overtime.

Under terms of a consent judgment, entered in the U.S. District Court for the Western District of Missouri, Legend of Asia will implement a computerized time-keeping system; have a third party audit its time and payroll practices for compliance; provide payroll statements to employees that clearly articulate the amount earned, as well as deductions for items provided such as housing and food; and provide training and notices to all employees regarding the requirements of the FLSA.

“Companies that fail to pay their workers in accordance with the law gain an unfair advantage over their competitors,” said Wage and Hour Division Regional Administrator Karen Chaikin, in Chicago. “Through its education and outreach efforts, the Department continues to ensure that employers and employees understand their responsibilities and rights under the Fair Labor Standards Act.”

Workers and employers with questions about the FLSA and all of the federal wage laws administered by the Division should call the agency’s toll-free helpline at 866-4US-WAGE (487-9243).  All calls are confidential.  More information is available online at http://www.dol.gov/whd/.

ASHEBORO, NC – A national food distribution company based in Asheboro has agreed to pay $136,266 in back wages and damages to 47 employees after a U.S. Department of Labor Wage and Hour Division investigation found overtime and other violations of the Fair Labor Standards Act (FLSA).

The Division’s Raleigh District Office found that El Club Mexicano Inc. had misclassified employees as independent contractors, and subsequently failed to pay them minimum wage or overtime. The employer paid workers a piece-rate based on their production without regard to the number of hours they worked. In some cases, that resulted in workers being paid less than the required minimum wage of $7.25 per hour. The company also failed to pay employees overtime when they worked more than 40 hours in a work week, and instead continued to pay only their piece rates for those hours.

As a result, 47 employees were found due $68,133 in minimum wage and overtime back wages, plus an equal amount in damages, totaling $136,266. 

“Paying a piece-rate does not establish an independent contractor relationship or relinquish the employer from their legal responsibility to pay the required minimum wage and overtime,” said Wage and Hour Division District Director Richard Blaylock. “We appreciate El Club Mexicano’s decision to comply with the law and will continue our enforcement efforts on behalf of American workers, and to level the playing field for employers who play by the rules.”

The investigation also found El Club Mexicano hired minors, ages 14 and 15, to operate a forklift and paper box bailer, both for which the FLSA prohibits use by workers under 18. The agency assessed the company $6,638 in civil money penalties for the child labor violations.

The employer has agreed to comply with all FLSA provisions in the future as well as pay all back wages, damages, and penalties in full.

For more information about the FLSA and other laws enforced by the Wage and Hour Division, contact the Division’s toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at http://www.dol.gov/whd

MINNEAPOLIS, MN – The U.S. District Court for the District of Minnesota entered a consent judgment agreed to by the Department of Labor’s Wage and Hour Division and a Minneapolis employment agency to resolve overtime violations. As a result, 92 healthcare workers will receive $401,384 in back wages and damages.

The Division found violations of the Fair Labor Standards Act’s (FLSA) overtime and recordkeeping provisions when All Temporaries Midwest Inc. and its owner, Mark Liveringhouse, failed to pay healthcare workers one-and-one-half times their regular hourly rates for all the hours they worked over 40 in a workweek. The company paid workers time-and-one-half for hours they worked between 41 and 47 in a workweek, but then paid only straight time for any hours worked beyond 47.

“We are pleased that these workers will receive their rightfully earned wages through this agreement and that the employer will be complying with the law going forward,” said Wage and Hour Division District Director David King, in Minneapolis. “Our education and outreach efforts seek to ensure that companies understand their responsibilities. Our efforts on both fronts protect responsible employers and hard-working employees.”

The company places registered nurses, licensed practical nurses, and certified nursing assistants with area clients. 

For information about this topic and all of the federal wage laws administered by the Division, call the agency’s toll-free helpline at 866-4US-WAGE (487-9243). All calls are confidential. More information is available online at http://www.dol.gov/whd/.

Civil action no.: 17-cv-3330

ZEBULON, NC – The U.S. Department of Labor has obtained a temporary restraining order against a plastics manufacturer after an investigation found the company failed to pay minimum wage and overtime to its employees.

The Department’s complaint seeks to keep Aimet Technologies LLC from shipping any products manufactured between June 19 and July 2, 2017. The Division believes the company’s plastic components – used in commercial and residential appliances – were produced by employees who were paid less than the federal minimum wage during that time period.

Investigators from the Wage and Hour Division found the employer either failed to pay any wages at all to salaried employees, or paid hourly employees at a rate less than 30 percent of their regular rates of pay, resulting in some employees earning less than $7.25 per hour. The employer also failed to pay affected employees overtime at one-and-one-half times their regular rates of pay when they worked more than 40 hours in a week. These infractions violated the overtime and minimum wage provisions of the Fair Labor Standards Act.

“Federal wage law prohibits the interstate shipment of any goods produced in violation of its provisions,” said Wage and Hour Division District Director Richard Blaylock. “Our goal is to ensure that workers are paid properly, and that law-abiding employers do not find themselves at an economic disadvantage to those who do not follow the law.”

In all, the Wage and Hour Division determined that 77 employees were due $43,554 in minimum wage and overtime back wages. The complaint was filed in U.S. District Court for the Eastern District of North Carolina.

For more information about the FLSA and other laws enforced by the Wage and Hour Division, contact the Division’s toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at http://www.dol.gov/whd, including a search tool to use if you think you may be owed back wages collected by WHD.

PHILADELPHIA, PA – The U.S. Department of Labor’s Wage and Hour Division is conducting a construction survey in 24 New York counties to collect data on wages paid to workers to help establish prevailing wage rates, as required under the Davis-Bacon and Related Acts.

The survey includes wages paid on all building construction projects that occurred between June 1, 2016, and May 31, 2017, in the following counties: Allegany, Cattaraugus, Cayuga, Chenango, Chautauqua, Clinton, Columbia, Cortland, Delaware, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Lewis, Montgomery, Otsego, Schuyler, Seneca, Steuben, St. Lawrence, Sullivan, and Wyoming. It is not limited to federal or federally funded construction projects.

“Davis-Bacon prevailing wage rates should reflect the actual wages and fringe benefits paid to construction workers in the locations where the work takes place. This can only happen with full participation by the construction industry community in these 24 New York counties,” said the Division’s Northeast Regional Administrator Mark Watson. “Participation by contractors and interested parties is crucial. Low response can lead to wage rates that do not reflect wages and incomplete wage determinations, which leads to an increase in requests for additional classifications.”

Notification letters and data collection forms, known as WD-10s, are being sent to interested parties and contractors known to the Division. Data must be postmarked by March 25, 2018, to be included. You may also complete the survey online.

You do not need to receive a letter to answer the survey. If you would like to participate, or have questions regarding the survey process or completing the WD-10 form, contact William E. Schweizer at 267-687-4031.

ATLANTA, GA – A U.S. District Court for the Southern District of Georgia has ordered Bland Farms Production and Packing LLC – an onion producer in Vidalia – to pay $1,480,268 in back wages and liquidated damages after the U.S. Department of Labor’s Wage and Hour Division found the employer violated the Fair Labor Standards Act (FLSA).

Bland failed to pay overtime to approximately 460 employees over the span of six years, the Division determined. Under the FLSA, employers must pay workers time-and-a-half when they exceed 40 hours in a work week. The overtime rule exempts company workers involved in primary agriculture, the act of growing product; or secondary agriculture, the act of processing, and packaging the product grown by that company.

Bland violated that rule when it failed to pay overtime wages to packing-shed employees involved in the processing and packaging of onions grown by other farmers who were contracted with the company to grow onions for sale to Bland. The contract farmers planted and grew the onions only to be packed and sold by Bland.

“This decision recovers back wages for hundreds of workers in an industry where these violations are all too common,” said Southeast Regional Administrator for the Wage and Hour Division, Wayne Kotowski. “We are committed to enforcement and educational efforts to ensure that workers know their rights and employers know their responsibilities.”

The Department and the court rejected Bland’s contention that the advice the company provided to the contract farmers was sufficient to make Bland a farmer of the onions grown by those farmers. The Department and the court determined that because Bland was not the farmer of the onions grown by the contract farmers, processing and packaging those onions was not incidental to Bland’s farming operations. As such, the agricultural exemption from the FLSA’s overtime requirements did not apply to the packing-shed employees when they processed onions not grown on Bland property.

The court also found that Bland did not act in good faith in continuing to fail to pay overtime after the Department filed its complaint and awarded over $500,000 in liquidated damages to workers from the time of the lawsuit in 2014 to the present.

“This case makes it clear to agricultural producers like Bland that if you’re not growing the produce, the agricultural exemption from overtime does not apply,” said Regional Solicitor Stanley Keen. “A decision like this one levels the playing field for other large producers who pay their packing house employees as the law requires.”

For more information about the FLSA and other laws enforced by the Wage and Hour Division, contact the Division’s toll-free helpline at 866-4US-WAGE (487-9243). Information is also available at http://www.dol.gov/whd.

KANSAS CITY, MO – The owner of a Kansas City-area restaurant pleaded guilty in federal court to two felony counts of providing falsified payroll records to impede an investigation by the U.S. Department of Labor’s Wage and Hour Division into violations of federal wage laws.

Yong Lin – president of China Garden Buffet Inc. in Merriam, Kansas – entered the plea on Sept. 12, 2017, before U.S. District Court Judge Carlos Murguia. Sentencing is expected before the end of the year. Falsification of records could result in a sentence of up to 20 years imprisonment, $250,000 in fines, and three years of supervised release, as well as restitution.

“This case demonstrates our commitment to preventing companies that choose to break the law from gaining an unfair advantage over their competitors,” said Regional Wage and Hour Division Administrator Karen Chaikin, in Chicago. “The case also helps ensure that workers are paid what they have earned.”

During the Division’s inquiry, Lin presented falsified payroll records to investigators in February 2013 and January 2014. After determining back wages of $709,539 were due to 56 employees of China Garden Buffet for violations of overtime, minimum wage and record-keeping provisions of the Fair Labor Standards Act (FLSA), the Department filed a lawsuit on Aug. 21, 2014, to recover back wages and liquidated damages.

In 2011, China Garden Buffet paid back wages of $15,504 to 16 employees after the Division found similar FLSA violations.

The Department’s Regional Solicitors Office in Kansas City and the Office of Inspector General assisted with the case.

Persons with questions can get more information about this topic and all of the federal wage laws administered by the Division by calling the agency’s toll-free helpline at 866-4US-WAGE (487-9243). All calls are confidential. More information is available online at http://www.dol.gov/whd/.

PHILADELPHIA, PA – A Philadelphia restaurant has agreed to pay 63 workers a total of $197,917 in back wages, and an equal amount in liquidated damages, to resolve alleged federal wage violations, including requiring employees to work unpaid hours. The agreement is part of a proposed consent judgment filed on Oct. 16, 2017, pending review and approval by a federal judge.

An investigation conducted by the U.S. Department of Labor’s Wage and Hour Division in Philadelphia found that Washington Square Restaurant Partners LP – doing business as Talula’s Garden – violated the overtime, minimum wage, and recordkeeping provisions of the Fair Labor Standards Act (FLSA).

“The workers at Talula’s Garden did not receive the required minimum wage and overtime pay,” said Wage and Hour Division District Director James Cain, in Philadelphia. “Our agency is committed to ensuring that workers not only receive the wages they have rightfully earned, but that employers are provided all the tools they need to understand and comply with the law.”

Division investigators found that line cooks did prep work off-the-clock before the start of their shifts, resulting in unpaid overtime work.  Servers and bartenders also worked – off-the-clock and without pay – to prepare food, the restaurant, and their individual work stations, resulting in minimum wage and overtime violations. The Division also found the restaurant failed to maintain accurate records of work hours for bartenders, servers, and line cooks.

“The off-the-clock work performed by Talula’s Garden employees resulted in clear violations of the Fair Labor Standards Act,” said Regional Solicitor Oscar L. Hampton III.  “This enforcement action, and the consent judgment resolving it, advances our goal of ensuring not only that restaurant employees are properly compensated, but that employers in this industry operate on a level playing field.”

The FLSA requires that covered, nonexempt employees be paid at least the minimum wage of $7.25 per hour for all hours worked, plus time-and-one-half their regular rates, including commissions, bonuses, and incentive pay, for hours worked beyond 40 per week. Employers also must maintain accurate time and payroll records.

The Division is committed to leveling the playing field for all employers and providing companies with the tools they need to understand and comply with the variety of labor laws the division enforces. It offers useful resources ranging from an interactive Employment Laws Assistance for Workers and Small Businesses advisor to a complete library of free, downloadable workplace posters. In addition, Community Outreach and Resource Planning specialists conduct ongoing activities to educate stakeholders, including employers, employees, business and labor groups, and professional associations.

For more information about federal wage laws, call the agency’s toll-free helpline at 866-4US-WAGE (487-9243). Information also is available at http://www.dol.gov/whd/.