U.S. Department of Labor Offers Little Help to Cheated Workers
Of the five Southern states surveyed, officials in all but one acknowledged to the SPLC that they simply do not enforce the minimum wage law at all. Instead, they merely refer complainants to the U.S. Department of Labor (DOL).
But for reasons that have been well documented, the DOL is ill-equipped to help most workers collect unpaid wages.1
In federal fiscal year 2007, the most recent year for which the Administrative Office of the United States Courts has published data, there were 7,310 Fair Labor Standards Act (FLSA) actions filed in all federal district courts, but only 151 of these actions — 2 percent — were filed by the DOL. The percentage of all FLSA actions filed by the department, as a proportion of all FLSA actions filed, has been dwindling for many years. Until fiscal year 1987, the department filed about half of all FLSA actions, and in many years a much higher percentage. (In that year, 48 percent, or 705 of 1,468 FLSA actions, were filed by the department.)
Moreover, the department does not conduct as many so-called full investigations as in the past. A full investigation is a wall-to-wall examination of all departments and all establishments of an employer. More and more, the department is conducting "conciliations" and "limited investigations."2
In a conciliation, the investigator, by means of a telephone call or quick visit, tries to resolve a case that seems to involve only one or just a few employees. But whether other employees have suffered similar violations — that is, whether the alleged violations represent a wider pattern — may never be determined.
In a limited investigation, only one department of a multi-department business is investigated, such as the warehouse of a retail chain, or only one establishment of a multi-establishment chain is investigated. This type of investigation can easily obscure more widespread violations.
Wage Investigators Dwindle
The number of the department's Wage and Hour Division investigators has dwindled so that now the total number of hours devoted to investigating employers translates into the equivalent of an estimated 544 full-time investigators (based on 2004 data). The Department estimates that there are 135 million workers in 7.3 million establishments in the United States. This leaves each investigator with 245,000 employees to protect. These investigators are not only examining possible violations of the FLSA, but possible violations of the Family and Medical Leave Act, the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), the Service Contract Act, the Davis-Bacon Act, and many other laws.
In 2008 testimony before the House Committee on Education and Labor, the Government Accountability Office reported that a study of the Wage and Hour Division of the DOL revealed that the department often failed to record complaints received, failed to use existing tools to increase compliance and failed to adjust its priorities in response to new data.3
1. See, e.g. Wage Theft in America, Kim Bobo, 2008.
2. See Fair Labor Standards Act: Better Use of Available Resources and Consistent Reporting Could Improve Compliance, United States Government Accountability Office, July 15, 2008.