Where Goes the Wage & Hour Division in 2021?

I've got a feeling twenty-one
Is going to be a good year
Especially if you and me
See it in together

So you think twenty-one
Is going to be a good year
It could be good for me and her
But you and her, no never

I had no reason
To be over optimistic
But somehow when you smiled
I can brave bad weather

--The Who, 1921 

Every year around now Shlomo Katz (and before him, Gilbert Ginsburg) and I sit down and prepare the labor and employment materials for the Thomson Year in Review Conference. This is probably the largest annual gathering  of the government contracts legal community, no doubt because it is “free” for Thomson subscribers. I always find it a moment of introspection. Preparing the materials means that we look back over the course of the prior year and try to distill the essence of it by recounting the significant events of interest. It usually includes items that range from the politically controversial to the sublimely ridiculous. Of course, you don’t know where you are until you know where you have been.

However, this blog is going to be about what may come next, rather than what has passed. Let’s keep in mind what Casey Stengel said: "Never make predictions, especially about the future." And then let’s blithely disregard his advice. Here are my wage and hour predictions for the future:

1. Demonstrators will storm the Capitol Building and President Trump will call for insurrection….  Not kidding!

2. Since Wage & Hour Division (“WHD”) investigators are not paying site visits nor interviewing  workers in person, they will actually get more done and recover more monies in 2021. Indeed, employers who have never been investigated by DOL before, including many government contractors, will see one or more investigation in 2021. Indeed, that has already happened in 2020. The likely reason is that cutting out the unproductive travel time and doing their business over email and the phone, has already made the WHD investigators more efficient.   

3. The US Supreme Court will expand its Encino Motors “Fair Reading” interpretive rule and will use it to sweep away the fog that shrouds the jurisprudence of the Ninth Circuit on subject s such as liquidated damage awards and the Fluctuating Work Week Method. The conservative court will also become a check on and counterbalance to a more liberal activist WHD.

4. Now that the Democrats have swept the two seats in the Georgia U.S. Senate elections held yesterday, new Congressional Review Act (“CRA”) legislation may be introduced to repeal last minute controversial rulemaking by the outgoing Administration, such as the new limitations on diversity training  imposed as a campaign too by Trump.

5. Democratic control of the Senate will clear the way for President Biden to appoint a more progressive nominee for Secretary of Labor, whose confirmation is less likely to be blocked if there is unified party control of the federal government.

6. The WHD gets busy with a new set of rulemaking and enforcement initiatives reminiscent of the Bill Clinton and Barack Obama eras. La plus ca meme chose….  Get ready for higher minimum wages, greater worker benefits, more restrictive exemption tests, higher salary basis requirements, more liquidated damages demands, new contractor responsibility rules, more debarment of errant government contractors, a new nondiscrimination/first right of refusal Executive Order, and overall more worker friendly rulings and orders.

7. The new Secretary of Labor, once approved, will terminate all but one member of the current Administrative Review Board (despite their professionalism unlike some earlier boards) and install new appointees blessed by organized labor.  

8. The new WHD Administrator will be someone from the ranks of organized labor or a union-sponsored state labor official.

9. Any movement to “reform” the wage and hour laws and fix their dysfunctional elements will be lost in Congressional gridlock. There is no center.

10. More weird, unpredictable stuff will happen than any one can conceive.