As part of its strategic plan issued in late September, the Department of Labor listed the misclassification of workers as a major agenda item. But as the agency picks up its pace in pursuing wage-and-hour violators, a short but interesting piece recently posted on the HR Policy Association website, entitled “DOL Embroiled in Its Own FLSA Overtime Dispute,” suggests that it hasn’t always set the best of examples.
In 2006, the American Federation of Government Employees Local 12 filed a grievance against the Department of Labor, accusing it of misclassifying certain federal workers. It took years of legal briefs and delays, but the parties eventually were able to come to an agreement as to what positions were incorrectly classified. Still remaining to be decided, though, are the amount of damages.
“This case shows the difficulty that any employer has when it comes to classifying workers as either exempt or nonexempt under the Fair Labor Standards Act,” says D. Mark Wilson, principal of Applied Economic Strategies in Washington and a former deputy assistant secretary of the Employment Standards Administration during the Bush administration. “It really does illustrate that even the agency charged with enforcing the law has a very difficult time making these determinations.”
It’s just one more reminder of the need to update the FLSA, Wilson asserts.
Michael Snider, managing member of Snider & Associates, a Baltimore, Md.-based law firm that specializes in pursuing alleged FLSA violations in the federal sector, hopes a dollar figure can be arrived at by next summer. (He told me about 3,000 workers are affected.)
But whatever the final outcome of the case, as it approaches a fifth year, one has to also wonder if the DOL would be showing as much patience were it not the subject of this dispute?