DOL’s political leadership continues to impede enforcement and undermine agency credibility
The head of the United States Department of Labor (“DOL”), who is the son of former United States Supreme Court Justice Antonin Scalia, has pushed the agency in a decidedly different direction since being appointed Secretary of Labor. Under Secretary Eugene Scalia’s dictates, the DOL has reportedly made it easier for employers to misclassify workers as “independent contractors” and, consequently, to deprive those workers of the rights and benefits that employees have. According to a recently filed whistleblower complaint, Secretary Scalia also transferred one of the DOL’s top enforcement officials to a non-legal position and, moreover, to a different part of the country to thwart vigorous prosecution of employee misclassification and wage theft claims. In addition, under Secretary Scalia’s direction, the DOL no longer seeks liquated damages (double damages) under the Fair Labor Standards Act (“FLSA”) for employees who have experienced wage theft at the hands of their current or past employers. This reversal of course by the DOL is striking given the law has long recognized that double damages remain essential to compensate employees fully – given the time-value of money regarding overtime pay and other unpaid wages claims – and, furthermore, to deter future wage theft by employers. The DOL’s workplace safety guidance and enforcement efforts via the Occupational Safety and Health Administration (“OSHA”) during the ongoing pandemic also have been weak at best, apparently leaving many people vulnerable to contracting COVID-19, losing their livelihoods, or worse. On the other hand , the DOL has begun micromanaging diversity, equity, and inclusion trainings for employees – restricting the substance and scope of education about civil rights protections and remedies. The radical changes at the DOL prompted a recent New Yorker article to conclude that Secretary Scalia is actually “the Secretary of Employers.”
Although the Republican-controlled Minnesota Senate removed the visionary Commissioner of the Minnesota Department of Labor and Industry (“MNDOLI”) recently and without valid justification, that agency’s leadership still pursues a robust approach to workplace protections under the Minnesota FLSA and the Minnesota OSHA. In addition, the Commissioner of the Minnesota Department of Human Rights (“MDHR”) has charted a bold way forward to provide meaningful community education, outreach, and enforcement concerning civil rights under the Minnesota Human Rights Act. Minnesota Attorney General Keith Ellison continues to work closely with the MNDOLI and the MDHR as his office aggressively combats wage theft and other workplace violations. In short, the outlook for employment rights and remedies is bright at the State level even as the current situation at the Federal level offers less promise. Elections have consequences. For everyone eligible to vote, be sure to do so on or before November 3, 2020.