MISSION AND FUNCTION:
"Labor Standards," the basic protections established by Federal law for
workers, is the unifying theme of this Division's work. The Fair Labor
Standards Division provides litigation and other legal services for the
Wage and Hour Division,
Employment Standards Administration and the Office of
Investigative Assistance in the
Occupational Safety and Health Administration (OSHA).
STATUTES: In
the wage and hour area, this Division's statutes include those that require
the payment of minimum wages and overtime premium pay for workers generally
(the
Fair Labor Standards Act), and prevailing wages and overtime
pay for contractors on government contracts (the
Davis-Bacon and Related Acts, the
McNamara-O'Hara Service Contract Act, the
Walsh-Healey Public Contracts Act, and the
Contract Work Hours and Safety Standards Act). The
Fair
Labor Standards Act also sets standards for the employment of
youth; the
Migrant and Seasonal Agricultural Workers Protection Act sets
standards for pay, housing, and transportation for migrant and seasonal farm
workers; the
Employee Polygraph Protection Act provides protection to
employees and job applicants from illegal polygraph tests; the
Family and Medical Leave Act requires employers to provide eligible
employees with 12 weeks of family or medical leave on a yearly basis, with
medical benefits and reinstatement rights; the
Consumer Credit Protection Act protects employees' pay from
excessive garnishments. The Division provides services regarding certain
provisions of the
Immigration and Nationality Act, especially special visa programs
for nonimmigrant aliens entering the U.S. for employment in agriculture, and
specialty occupations.
In
the OSHA area, this Division's statutes include the employee protection
("whistleblower protection") provisions of several environmental protection
statutes, the
Energy Reorganization Act (regulating the nuclear power
industry), the
Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
(regulating aviation safety); Section 806 of the Corporate and
Criminal Fraud Accountability Act of 2002, Title VIII of the Sarbanes-Oxley
Act of 2002 (regulating corporate accountability); and Section 6 of the
Pipeline Safety Improvement Act of 2002. These statutes protect employees
who provide information about possible violations from retaliation by their
employers.
DESCRIPTION OF DUTIES: The Division's attorneys handle a variety of duties,
including appellate litigation; occasional trial litigation; regulation
writing and review; legislative services; and legal advice on a variety of
issues affecting the interpretation and enforcement of the aforementioned
statutes. The staff attorneys generally engage in all the functions of the
Division (rather than receiving assignments only within a particular subject
area). They normally receive individual assignments from each of the
Division's counsels, the senior attorneys, and sometimes directly from the
Associate and the Deputy Associate Solicitor. There is limited travel,
usually averaging one to three overnight trips per year.
The Division's appellate litigation, conducted before the U.S. courts of appeals
and the Department's Administrative Review Board ("ARB"), encompasses the
analysis of trial records, the preparation and filing of briefs, and the
presentation of oral arguments. The appellate practice before the U.S.
courts of appeals includes prosecuting and defending appeals from the U.S.
district courts as well as defending decisions by the ARB. The Division's
litigation program also involves monitoring private litigation under the
Division's various statutes to determine whether the Department's
participation as amicus curiae ("friend of the court") is appropriate.
Examples of some recent appellate cases include:
- In IBP, Inc. v. Alvarez, No. 03-1238, and Tum v. Barber Foods, Inc., No. 04-66,
the Supreme Court unanimously concluded that, under the Fair Labor Standards Act as
amended by the Portal-to-Portal Act, employees who work in meat and
poultry processing plants must be paid for time spent walking between
the place where they put on or take off protective equipment and the
place where they process the meat. The Court thereby agreed with the
position the Solicitor General took in the cases, which is consistent
with the position the Department of Labor took as an amicus in the
courts of appeals. The Court also concluded in Tum, however,
that although employees should be paid for time waiting to take off
their protective equipment, they should not be paid for time waiting to
put on the equipment. The Court's waiting time decision is narrow,
however, and preserves a Department of Labor regulation that treats
waiting time as compensable if an employer, unlike the employer in
Tum, requires its employees to report to work at a specific time.
- In Belt v. EmCare, No. 05-40370, the Division filed an amicus brief in the
Fifth Circuit supporting the employees' position that the district court
correctly concluded that physician assistants and nurse practitioners must
be paid on a salary basis in order to be exempt learned professionals under
the FLSA regulations at 29 CFR, Part 541.
- In
Taylor v. Progress Energy, No. 04-1525, an FMLA case, the Division filed
an amicus brief on rehearing in the Fourth Circuit supporting the employer's
argument that a FMLA regulation does not bar an employee from settling a
past FMLA claim without the Secretary's supervision or a court's approval,
but only bars the prospective waiver of FMLA rights. The appellate panel
had held that all private FMLA settlements must be either approved by a
court or supervised by Wage-Hour.
- Anderson v. U.S. Department of Labor and Metro Wastewater Reclamation District,
422 F.3d 1155 (10th Cir. 2005), presented the question of whether a
politically appointed member of Metro's Board of Directors was an
"authorized representative of employees" entitled to protection under
certain environmental whistleblower statutes. The Tenth Circuit affirmed
the ARB's decision in its entirety. It concluded that Anderson could not,
as a matter of law, represent any employees "because she was legally
required to represent the citizens of Denver, not any particular segment of
society or a particular interest group." The court further concluded that
substantial evidence supported the ARB's conclusion that Anderson failed to
show that she was actually authorized to represent any employees.
- In Bechtel v. Competitive Technologies, Inc. (CTI), No.
05-2404, the Division filed a brief as intervenor in the United States Court
of Appeals for the Second Circuit, to defend a district court decision that
enforced a preliminary reinstatement order under the whistleblower provision
of the Sarbanes-Oxley Act (SOX). The district court granted an injunction
enforcing an OSHA order that required CTI to immediately reinstate two
complainants to their former positions, with back pay, while the Department
adjudicates the merits of their complaints of retaliatory discharge. The
brief argued that the SOX whistleblower provision gives the district court
authority to enforce the preliminary reinstatement order, that CTI received
due process during OSHA's investigation and the subsequent review
proceedings, and that the district court properly enforced OSHA's order
without requiring the Secretary and complainants to establish the
traditional injunction factors.
The
Division's trial litigation mainly involves the active support of the
Regional Solicitors and the Department of Justice in trials before U.S.
district courts and Department of Labor administrative law judges. The
Division also directly litigates district court and administrative cases
deemed to be particularly significant or sensitive. An example of recent
litigation includes:
- In Abhe & Svoboda, Inc. v. Chao, C.A. No. 04-1973 (JR)
(D.D.C.), attorneys in the Fair Labor Standards Division assisted the United
States Attorney in defending in the United States District Court for the
District of Columbia an important decision by the Department's
Administrative Review Board, concerning the proper classification of workers
under the Davis-Bacon provisions of the Federal Aid Highway Acts, a
Davis-Bacon Related Act.
The
Division's advice and regulatory functions encompass issues and programs
under all the statutes within the Division's jurisdiction. Examples of
regulatory and advisory matters include:
- Updated regulations in Part 541 of Title 29 of the
Code of Federal Regulations promulgated under section 13(a)(1) of the
Fair Labor Standards Act are intended to clarify the overtime exemptions
applicable to executive, professional, and administrative employees.
Among numerous opinion letters reviewed, a recent opinion letter addresses
the question whether insurance claims adjusters qualify for the
administrative exemption from overtime pay under section 13(a)(1) of the
Fair Labor Standards Act. The August 2005 opinion concludes, after analysis
of relevant case law and the revised regulations at 29 C.F.R. Part 541, that
the FLSA requires that claims adjusters (claims specialists I) who do not
exercise discretion and independent judgment in matters of significance are
covered by minimum wage and overtime provisions of the FLSA, while those who
exercise the requisite discretion and independent judgment in matters of
significance (claims specialists II and senior claims specialists) qualify
for the administrative exemption.
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