Punching In: Take a Peek at DOL’s Banner Enforcement Numbers (1)

Monday morning musings for workplace watchers.

Labor’s Push on Back Pay | EEOC’s Early Days of PWFA

Rebecca Rainey: Acting US Labor Secretary Julie Su recently touted that her agency’s wage division recovered $1 billion in backwages and damages for 615,000 workers since President Joe Biden took office.

A large share of those cases were for violations of the Fair Labor Standards Act, like failing to pay the minimum wage, overtime premium pay, or retaliating against employees who raise concerns about their pay, a Bloomberg Law analysis of publicly available enforcement data from the agency covering roughly the same period shows .

It’s important to note that the DOL’s data—running from Jan. 20, 2021 to Sept. 30, 2024—only reflect instances where the agency has caught employers violating labor laws, and doesn’t reflect the full picture of wage theft or other illegal activity experienced by workers in the labor market.

From FY 2021 to FY 2023, the latest data available from the DOL, the agency collected nearly $479 million in backwages for nearly 421,000 employees who had experienced FLSA violations. Of those, 90,418 workers received backpay for minimum wage violations and 342,038 workers received backpay for for overtime violations.

Industries racking up the highest number of enforcement actions were in construction, food services, health care, and retail.

One of the cases involved workers at a La Tolteca Authentic Mexican Restaurant in Wilkes-Barre, Pa., who received $1.3 million in backwages, damages, and withheld tips after the agency discovered the owners had failed to pay proper overtime pay and operated an illegal tip pool. Su met with workers from the restaurant when announcing the billion-dollar recovery record in Nanticoke, Pa., last week.

The agency has also dedicated a large number of enforcement resources to reversing an uptick in illegal child labor across the US in recent years, including creating a multi-agency specialized taskforce. In FY 2023 alone, the agency found roughly 6,000 minors working in illegal conditions, a nearly 50% increase from the year prior.

But those enforcement efforts won’t show up in the $1 billion figure touted by the agency last week. Federal laws that prohibit children from working at certain hours or in certain industries don’t provide backwages for violations, but they do allow for civil monetary penalties. From FY 2021 to FY 2023 the agency assessed $15,688,728 in money penalties for violations of child labor laws.

Acting Labor Secretary Julie Su and Wage and Hour Administrator Jessica Looman participate in a roundtable at a union hall in Nanticoke, PA. with workers who received back wage as part of an investigation into a La Tolteca restaurant.

Rebecca Rainey/Bloomberg Law

Rebecca Klar: The first settlement in a Pregnant Workers Fairness Act case brought by the EEOC was reached earlier this month, resulting in a $100,000 payment to a former employee and offering a glimpse into how the new law will impact employers.

Lago Mar Resort & Beach Club agreed to pay $100,000 to a former employee to settle the Equal Employment Opportunity Commission’s case alleging the hotel violated the law by terminating the worker after she requested leave to recover and grieve from a stillbirth during the fifth month of her pregnancy.

Along with the $100,000 payment in damages to the employee, the Florida-based hotel also agreed to appoint an EEO coordinator, revise its employment policies to ensure compliance with the PWFA, and provide training to employees.

It’s the first of the EEOC’s five PWFA lawsuits filed in the last fiscal year to be settled, and illustrates what compliance with the law will mean for employers.

EEOC General Counsel Karla Gilbride said the PWFA had two main goals: to allow people to remain connected to their jobs with accommodations and to allow for necessary time off for related conditions.

The Lago Mar case centered around a time off request that was denied to an employee after she experienced a stillbirth. The employee was fired two days after her request for six weeks of leave, along with a doctor’s note confirming the pregnancy loss, the EEOC said in its complaint.

“That really knee-jerk reaction, without engaging in a good faith interactive process, we allege is a violation of the PWFA because it just requires that there be a discussion between the employee and the employer about what is reasonable and that did not happen here,” Gilbride said.

In the EEOC’s final rules under the PWFA from April, it states that employers are required to make accommodations for workers for pregnancy and related medical conditions.

The other cases the EEOC filed under the PWFA in fiscal year 2024 that ended in September include allegations that employers failed to provide accommodations to allow pregnant employees to take additional breaks or switch to less physically demanding positions. The cases the EEOC filed focused on workers in physically demanding jobs, including in manufacturing, to show workers that can be most impacted by denying the types of accommodations the law requires.

“A lot of what we are seeing and the cases that we filed in litigation involve really common sense things that people are asking for,” Gilbride said.

The same week as the Lago Mar settlement, the EEOC announced a second conciliation agreement to resolve a PWFA charge. Typically, conciliation agreements remain private, unless otherwise agreed to.

The second conciliation agreement was between a Popeye’s fast food location in Florida and an employee that the EEOC charge alleged was fired because the employer thought she would need accommodations to perform her job duties. In addition to paying compensations to the former employee, the employer agreed to train all its employees on pregnancy discrimination and appoint an EEO coordinator.

The EEOC also announced a separate pregnancy discrimination lawsuit and conciliation agreement to resolve a pregnancy discrimination charge that week.

With the new law in place, “getting the word out is critical,” and the main tool the EEOC has to do that is filing lawsuits and issuing press releases, said Esther Lander, an attorney at Orrick.

“Having a bunch of press releases and examples that are public allows the EEOC to spread the word about some of the PWFA requirements to help ensure employers know about these new requirements and get into compliance,” Lander said.

We’re punching out. Daily Labor Report subscribers please check in for updates during the week, and feel free to reach out to us.

Updated to correct Gilbride’s quote in the fifteenth paragraph.