January 17, 2017

Under Republican control, the DOL’s Wage and Hour Division may change how it enforces overtime and minimum wage laws by focusing more on helping employers comply and less on investigating possible violations. Plaintiffs’ attorneys are waiting to see exactly how the WHD’s agenda might shift but say they may need to fill the void on smaller-dollar cases for low-wage and immigrant workers.

The incoming agency’s exact agenda still isn’t clear, but some lawyers are already forecasting that President-elect Donald Trump’s choice of fast-food executive Andrew Puzder to run the DOL signals a strong likelihood of a WHD enforcement reversal. In some aspects, the private-public enforcement balance may not change under Trump and Puzder. WHD investigators and attorneys are career civil servants, many of whom are mission-driven regardless of who is in the White House. Private Fair Labor Standards Act litigation has already been booming in the past decade, partially from ambiguities in overtime exemption interpretations.

Still, the practice of referring less-profitable cases for the government to investigate may be coming to an end. That has the plaintiffs’ bar pondering how it can pick up the slack. The problem for the plaintiffs’ bar is that small-dollar cases don’t keep the lights on. Firms may have to grapple with manpower issues to take on additional cases with minimal return on investment.

“We’re already very busy,” Joseph Sellers, a partner at Cohen Milstein Sellers & Toll PLLC in Washington, told Bloomberg BNA. Sellers said firms like his that intentionally select cases not typically brought by the government will become more in demand if the WHD puts investigations on the back burner. “I hope we will have the ability to meet that demand,” Sellers said.

This article originally appeared in Bloomberg BNA.