March 18, 2021
The Biden administration’s Labor Department is empowering career officials across the U.S. to deploy a range of enforcement tools when scouring businesses for wage violations, overturning a Trump-era policy that consolidated approval of such decisions under one politically appointed leader.
Jessica Looman, the principal deputy administrator of DOL’s Wage and Hour Division, earlier this month revoked 2019 instructions issued by the Trump-appointed WHD Administrator Cheryl Stanton, according to an internal memo obtained by Bloomberg Law.
Looman, who arrived on Inauguration Day, is ceding control to regional and district office personnel, who now gain final approval on multiple actions—such as more stringent back-wage settlements—that crack down on employers accused of shorting workers on pay.
Previously, many of these activities required Stanton’s final approval, which sent a chilling effect to the enforcement field that stopped some career officials from pursuing those means and methods, according to current and former DOL officials.
By spurring more frequent and faster use of wage investigation tactics, the changes are likely to deliver a more punitive enforcement philosophy when WHD investigators scrutinize company payroll practices.
. . .
Looman’s March 8 memo came amid a series of DOL regulatory and policy decisions that voided employer-friendly measures. It delegated to regional administrators, who are career civil servants, authority to greenlight their staff’s use of:
- “Enhanced compliance agreements” in settlements, which generally require more egregious violators to take steps to ensure adherence to wage laws;
- Visa certifications for undocumented workers who are victims of severe workplace crimes;
- Cooperation agreements with state agencies to share information;
- “Sharing letters” between WHD and other government agencies investigating the same workplace; and
- Requests to withhold payments to government contractors who owe workers wages.
Utilizing those means often requires time-sensitive decisions that must be made by the qualified, veteran officials on the ground, not by the national administrator, said Michael Hancock, a former senior WHD official in the Obama administration who worked at the division for two decades.
“If the reality is I can’t decide which of these tools that I can use today, those are effectively tools that aren’t available to me,” said Hancock, now a plaintiff attorney at Cohen Milstein in New York. He called Looman’s memo an “important step in trying to rebuild the relationship between the national office and the field.”
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