Human Resources News & Insights

Is the DOL sneaking back into FLSA ‘right to know’ mode?

Is the Labor Department resurrecting the idea of requiring companies to provide employees with written notice of their exempt/non-exempt status?

A couple years back, the DOL announced it was considering a rule that would require employers to notify workers — in writing — of their rights under the FLSA. Under this rule, employers would have to perform a written classification analysis for every exempt employee.

After an analysis is complete, the employer would have to share the information with the worker.

Companies would also be required to retain the analysis documents in the event of a DOL investigation.

More paperwork for you

According to attorneys Thomas Wilde and Andrea Lewis of the law firm Vedder Price, the DOL recently published a notice in the Federal Register requesting public comments on its “proposal to collect information about employment experiences and workers’ knowledge of basic employment laws so as to better understand employees’ experience with worker misclassification.”

And that, the attorneys say, could mean the feds are again gearing up to focus on employee misclassification issues.

Here’s some background on the situation, according to Lewis and Wilde:

A couple of years ago, the DOL said it’d be releasing proposed rules on the “Right to Know Under the Fair Labor Standards Act,” but failed to do so. The agency then pushed back the issue to its “long-term action” agenda.

But the new survey, which is scheduled to run until May, could signal that the issue’s on the table again.

What’s it all mean? If adopted, the rules would mean more paperwork for HR and Payroll. “(Since) employers are not currently required to notify workers or the DOL of the workers’ status, and they are not required to provide information to all employees on how their pay is calculated, these regulations would place an added burden on employers,” Wilde and Lewis wrote. “Further, considering the increasing amount of wage and hour litigation, this type of rule may lead to even more lawsuits filed on behalf of workers alleging they were misclassified.”

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