We’ve reached almost the end of April, and the long delayed, new FLSA regulations are still percolating somewhere in deep inside the DOL. So what has the agency been up to instead? Last month, as part of the annual “Sunshine Week” spotlighting the importance of open government, freedom of information, and the public’s right to know, the DOL took a rather odd view of government transparency: spotlighting enforcement against businesses. In a blog post commemorating Sunshine Week, Jesse Lawder, the DOL’s Acting Chief of Staff for DOL’s Office of Public Affairs wrote that “open, transparent government is one of the hallmarks of democracy.” However, Mr. Lawder wasn’t announcing government transparency of the type you might expect, such as open, substantive stakeholder engagement in the development of new FLSA regulations, or a return to the longstanding (but now halted) Wage and Hour Division practice of publishing opinion letters. Instead, the DOL announced that it was “quite proud” of its Online Enforcement Database (OED), a database of information on DOL enforcement activities, including the names of employers who have run afoul of DOL enforcement under the FLSA and other laws.
First created in 2010, the DOL’s OED combines enforcement data collected by the Wage and Hour Division, the Office of Federal Contract Compliance Programs (OFCCP), the Employee Benefits Security Administration (EBSA), the Occupational Safety and Health, Administration (OSHA), and the Mine Safety and Health Administration (MSHA). Prior to OED’s introduction, only OSHA and MSHA databases were available online. Now, as Lawder’s blog post explains, all of the data is streamlined and aggregated in one location and accessible through common search terms. The post obliquely refers to “previously unpublished information” that the “press and outside stakeholders,” along with the public, can use to “look closely at industry and corporate trends.”
In the wage and hour context, that means that the OED site now includes fully geocoded WHD case and violation data that can be mapped and searched by year. The data includes an FLSA “Repeat Violators” chart and even the ability to search by company name. The DOL also added the ability to search WHD data by monetary penalty and back wages paid. All of the statistical data has some value in the aggregate, to be sure, but employers who find their names in the database may be legitimately concerned about the potential for negative publicity, use of the data by unions in organizing campaigns, and targeting by plaintiffs’ lawyers.
Whatever one’s stance is on the merits of the database, employers should be concerned. Wage and hour law is full of ambiguities and traps for the unwary. Even well-meaning employers can find themselves in the OED as a result of inadvertent violations or deciding to settle claims rather than protest the DOL’s findings. Releases of anonymized, aggregate data for examination of the DOL’s enforcement efforts and priorities makes perfect sense, particularly in commemoration of a celebration of open government. Particularly when coupled with outreach into areas like “predictable scheduling” and the agency’s flip-flopping on FLSA interpretations, though, tying that same data to specific employers without any obvious way to correct either the data, or the labels and insinuations that the DOL applies to it, simply underscores the agency’s increasingly aggressive agenda.