Raise the Kraken: DOL Posts Labor Compliance Information on Businesses on the Internet

“Which office do I go to get my reputation back?” 

--Raymond Donovan, former Secretary of Labor

 A friendly Department of Labor (“DOL”) wage and hour investigator shows up at one of your offices one summer day. They do a short investigation and find a few mistakes you made. You acknowledge the errors and promptly pay the workers thinking that is the end of it. Little did you know, but your violation will live on in perpetuity on the internet. Nothing is forgotten or forgiven, however trivial or unjustified. 

Recently (or at least I just learned about it), DOL has made available on the internet a record of federal contractors who have been “caught” violating the Wage and Hour Division (“WHD”) enforced laws, Office of Federal Contract Compliance Programs (“OFCCP”) requirements,  Occupational Safety and Health Administration (‘OSHA”) laws, and some other labor requirements. Information is now available on web page link as part of the DOL’s so-called “Data Enforcement” webpage, which has a searchable data base that allows the public to check for labor violations violators by company name.  

If you would like to view the website yourself, please see it here:

 https://enforcedata.dol.gov/views/search.php. You can go there and download multiple charts about virtually any American major business enterprise and plenty of small businesses too. The level of detail on the spreadsheets is scanty – mostly just sites of work, number of violations, statute violated, and sometimes dollar amounts. There is no nuance to the data set. It lumps egregious and willful violations in with trivial matters, inadvertent errors, and even likely nonculpable government caused errors. It is a very imprecise data base.

If I were running a business, I would want to know what the Government was saying publicly about my labor compliance.  So, who might be interest in the webpage? Obviously, the business enterprises being  who are being pushed into the public arena. Also, the information may be of interest to their workers, prospective employees, and even competitors. Unions interesting in organizing the employer’s work force are presumably one constituency for the data. Maybe contracting officers want to know more about business labor compliance profile before awarding contracts. And maybe plaintiff’s lawyers want information on repeat violations before bringing suit.  

It isn’t clear how and why certain investigations get recorded on the DOL website while other investigations skate under the radar.  I suppose it depends on the payment of some kind of damages (back wages, fines, etc.). There is no mechanism to correct anything and no ostensible purpose to the website beyond putting violations in the public arena. Nor is it clear how far back the data goes. Looking at the WHD spreadsheet of some of my clients, some of the data is very old, and beyond the memory of the current  corporate personnel. In other cases, no record is made of even recent investigations.   

One of the odder issues here are the multiple spreadsheets that come with each corporate search. As noted in the FAQ tab of the website there can be multiple entries for the same Company. As explained there:

The database is an aggregation of datasets from 5 separate agency systems. The data in these systems was collected by each agency in the exercise of its enforcement activities, over the decades, and without a DOL-wide standard for uniquely identifying business entities. So "Baraboo Concrete co inc" and "Baraboo Concrete Company Inc", or "Baraboo Concrete co., Inc.", in the absence of a unique identifier, are considered unique records. We know that this is an imperfect implementation of Company Name search, but we wanted to give you access to the data while we are working on addressing the unique identifier issue, and retrofitting it into the historical records, as much as possible.

Be aware that this is an exact text string search. You must enter the Company Name exactly as it appears in the lookup selection. 

https://enforcedata.dol.gov/views/faq.php. 

I haven’t asked the DOL what it is they hope to accomplish with this public flogging. Presumably, this is an outgrowth of the frustrated Obama-era Executive Order no. 13673, Fair Pay and Safe Work Places, which was intended to disclose violations of 14 federal statutes and executive orders. At one point DOL was going to supply data to the procurement community to make labor compliance part of the award of government contracts. But that process was eventually stymied in the courts and by a Congressional Review Act statute barring the executive action going forward. DOL is prohibited from doing what it wanted to do under most of Executive Order no. 13673. But what is left of the legacy of that effort apparently is a campaign to put as much into the public arena about wage and hour scofflaws, OSHA violations, and OFCCP discrimination settlement and suits as is possible. The likely theory animating the website is that the public has a right to know, and violators should be put into wooden pillory and exposed to public humiliation.

I learned about the website because a client received a misbegotten letter from the City of Columbus, Ohio procurement office. The client had not done business with the city in recent times but was apparently on some bidder’s list. The city in its letter gave them 15 days to respond and explain why they should be barred from doing business with the city given their labor compliance record. The client had two wage and hour violations involving small sums of money recorded in the DOL data base. Accordingly, the punitive contractor compliance process, which was hammered down on the federal level, is resurrecting itself in local government procurements. In a game of whack a mole, it is reappearing in local government procurements which are relying upon the federal data base.  

Anyway, this is the world we live in. If you get investigated by DOL, not only may you be subject to inaccurate press releases, but you can also be pilloried on the internet by your own government, and it never goes away. How do you get back your good reputation? Of course, that is hard when it is an authoritative posting by a  federal government entity which is bullying and flaming you. And it is doubly unfortunate when that torch gets taken up on the local level  for procurements without much due process to challenge the faulty data base.