Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our weekly newsletters. Signing up for any of our section newsletters will opt you in to the weekly Coronavirus briefing.
Sign up for our Employment newsletter
You must correct or enter the following before you can sign up:
Thank You!
Law360 (August 11, 2020, 5:33 PM EDT) -- A U.S. Department of Labor auditor reported Tuesday that a number of issues plague the agency's ability to enforce an emergency virus leave law, including the lack of on-site probes, the department's controversially broad take on the law's exemptions, and faulty data backing its rules.
The DOL's Office of the Inspector General said in the new report that the agency's Wage and Hour Division could be doing more to ensure workers can access benefits under the Families First Coronavirus Recovery Act, a bill enacted in March giving employees impacted by the coronavirus up to 12 weeks of paid leave to care for themselves or family members.
For one, the WHD's pivot from in-person probes during the pandemic — conducting only four limited investigations between mid-March and late May — "is impacting WHD's oversight of the FFCRA," the watchdog said.
According to the report, regulators acknowledged that conducting probes remotely "could impact efficiency due to communicating and receiving documents and records via email and having to conduct telephone interviews with employers and workers." WHD officials also told the OIG that social distancing is hurting the agency's ability to launch new cases and wrap up existing ones.
The watchdog advised the division to assess the effectiveness of its enforcement to suss out "when operational adjustments are necessary to most effectively utilize resources."
On top of the struggles of teleworking, the OIG said the regulator's controversial decision to exempt millions of health care workers from FFCRA benefits presented a "major challenge" to the enforcement of the law.
The division significantly expanded the definition of exempt "health care providers" to cover anyone working for health care employers, including nonclinical employees, rather than the accepted definition under the Family and Medical Leave Act that covers providers who are "authorized to diagnose and treat physical or mental health conditions."
The OIG pointed out that the FFCRA "specifically states that the term 'health care provider' has the meaning given that term in Section 101 of the FMLA," but the division "significantly broadened the definition of health care providers whom an employer might exempt from the FFCRA's requirements as opposed to the original definition established by the FMLA."
A New York federal judge recently wiped out the WHD's interpretation, finding it overly broad, and the watchdog advised the division to "take appropriate action" to address the impact of the ruling.
While the WHD estimated that the "maximum possible number of exempt health care industry workers" under its regulations was 9 million, the OIG said this was possibly an undercount, as it "did not include all of the occupations in the department's expanded definition for health care providers."
Gaps in the WHD's 2020 operating plan also caught the OIG's attention, as the auditor said key details about FFCRA enforcement were absent.
For example, the division "did not mention how the [New York attorney general's] legal challenge might affect the agency or the 9 million plus workers who could be denied paid emergency leave during the pandemic," the watchdog said.
The OIG advised that "more forward-looking updates" in the plan "will better position WHD for future circumstances regarding the pandemic and decrease the chances of resources being misdirected or misused."
The chairman of the House Education & Labor Committee, Rep. Bobby Scott, said Tuesday that the OIG's findings confirm that "the Trump administration is using its discretion to prevent workers emergency paid leave during a global pandemic."
In a statement, the Virginia Democrat urged the administration to "take the report's findings seriously by immediately restoring access to emergency paid leave for workers who should never have been exempted and developing a comprehensive plan to ensure workers are protected from wage theft during this pandemic."
The division said it would take steps to act on the OIG's recommendations, according to the report.
A DOL spokesperson told Law360 on Tuesday afternoon that the division has closed more than 1,700 FFCRA cases, unearthing more than $1.7 million in back wages for workers.
The representative said hundreds more cases remain open.
--Additional reporting by Braden Campbell and Stephen Cooper. Editing by Bruce Goldman.
For a reprint of this article, please contact reprints@law360.com.
