Employment Law Enforcement Efforts Focus on Inter- and Intra-Agency Collaboration

The Obama Administration has focused heavily on the enforcement of employment laws by government agencies across the board, and now, new measures are being taken to allow various agencies and sub-agencies to collaborate on their independent enforcement directives.  Employers are encouraged to prepare now or possibly face tough penalties. The U.S. Department of Labor (DOL), which includes the Wage and Hour Division (WHD), the Office of Federal Contract Compliance Programs (OFCCP), and the Occupational Safety and Health Administration (OSHA), has entered into an inter-agency Memorandum of Understanding (MOU) with the Immigration and Customs Enforcement (ICE) division of the U.S. Department of Homeland Security concerning enforcement activities at worksites.  The purpose of the MOU is to clarify the ways in which the agencies will work together to advance their directives and reduce duplication of efforts. Through the MOU, ICE has agreed to refrain from engaging in civil worksite enforcement at a worksite with an existing DOL investigation.  However, there are exceptions where both agencies can perform investigations at the same time if it is determined necessary by the director of ICE, secretary of Homeland Security or by an officer of DOL.  The MOU specifically states that ICE and DOL agree to create a means in which to exchange information from their respective investigations. The MOU explains that in most circumstances where an employer is subject to a DOL investigation regarding minimum wage, FMLA, work-related injuries, discrimination and/or retaliation, the employer will not be subject to an ICE civil audit at the same time.  The non-investigating agency, however, will be able to perform an independent audit after the initial agency completes its audit, and both agencies will share the results of their findings. AGC recently met with WHD Acting Director Nancy Leppink, who is responsible for enforcing such laws as the Fair Labor Standards Act, the Family & Medical Leave Act, the Davis-Bacon Act, and other laws that govern how wages are paid to workers.  Leppink shared with AGC the division’s efforts to form an intra-agency coalition with OFCCP, the division of DOL that enforces affirmative action and equal employment opportunity requirements of businesses that work with the federal government.  During the meeting, AGC explained that its members want to be in compliance with the law and asked Leppink for additional guidance and in-depth training for the often complicated and confusing wage laws to which construction contractors must adhere. These initiatives make it clear that enforcement is still a top priority, and there are no signs of slowing.  Employers are encouraged to review wage and hour policies and practices as well as immigration policies and practices, including I-9 records, to ensure compliance before an ICE or DOL investigation is initiated. The 2011 HR Professionals Conference and corresponding Federal Contracting Compliance Construction HR Workshop will feature sessions by two HR professionals of AGC member companies who will share their own experiences of both a WHD audit and an OFCCP audit.  In addition, a representative of the ICE will provide a hands-on workshop to train employers on ways to minimize unauthorized employment by the use of fraudulent documents.