A Thumb on the Scale? Department of Labor Establishes “Partnership” with Union

The Wage and Hour Division (“WHD”) of the US Department of Labor (“DOL”) announced last week that its New Orleans district office had entered into a “collaborative agreement” with the Southeast Louisiana Building and Trades Council. This is a three-year agreement that “will help provide construction workers in Louisiana with information, guidance and access to educational and training resources to help them exercise their rights, particularly those protected by minimum wage, overtime, recordkeeping and child labor laws.”

I don’t really have a problem with the notion of the WHD (or even the DOL as a whole) communicating with unions. There’s a long-standing history of unions bringing wage and hour violations to the attention of DOL. So, in some sense, this agreement is nothing new.

And I don’t take a blanket stance on whether unions are good or bad. Many of our clients have long-standing comparatively decent relationships with their unionized workforces. Indeed, we have worked productively with union organizations when their interests were aligned with the concerns of their federal contractor employers. That said, unions maintain a keen eye on employer practices and are instinctively suspicious of many employers. And they are not shy to bring complaints to DOL.

These complaints aren’t always on the mark. That’s why this agreement between WHD and a union (a concept that we’ve not heard of before) bothers me. It’s conveying a clear message (or at a minimum fueling a perception) that the WHD will, as a matter of formalized policy, favor the union perspective and disregard an employer’s right to be treated fairly. That message feeds a fear held by many employers that DOL has a gotcha mentality that stacks the deck against them no matter how hard they try to follow the law.

When we represent an employer that’s being investigated, we do our best to assure our clients that all is not lost and that they’ll be treated fairly. Over thirty-plus years we’ve worked with WHD investigators across the country when they conduct inquiries in response to worker (or union) complaints. By and large, WHD’s rank-and-file investigators are not fire-breathing employer-hating enforcers. Rather, they take a professional approach to their work. Yes, they advocate for the rights of workers. However, most honor their duty to enforce the laws in a relatively even-handed “just the facts” approach.

I worry that the message conveyed by this agreement may drive investigators to close their minds to our clients’ positions under the complex laws that govern many of our federal contractor clients’ employment practices. Under laws such as the Service Contract Act (“SCA”) and the Davis-Bacon Act (“DBA”), wage rates can vary significantly among employees who work on various federal contracts, in assorted locations, and doing different kinds of work. What any given worker should be paid or what benefits they should receive isn’t always clear to anyone—be it the employer, the worker, the investigator, or (sometimes) even us.

Oftentimes, in our first conversation with investigators, we will ask them what experience they have with the SCA or DBA. If these laws are new to them, we know that one of our tasks will be to ensure that they apply their findings correctly under the law. For example, we’ve blogged that sometimes you have to just check the math in a back pay settlement to make sure the calculations are legally correct employee-by-employee. We’ve found instances where a faulty understanding of the law led investigators to miscalculate the amounts owed to workers resulting in potential overpayments andunderpayments.

If minds close due to preconceived notions, it will be very hard for us as attorneys to resolve complaints quickly and equitably. I hope in the future I will realize that I really didn’t need to fear the falling of the sky. But, this “partnership” between WHD and a union gives me pause when that “partnership” is expressly intended to “help both organizations cross-train staff, ease outreach efforts and identify possible labor violations.” Sure, a relationship has long existed between DOL and the labor movement and DOL certainly has a perspective that favors the interests of employees.

However, to my mind, the relationship between unions and the Government should be independent so that neither is expressly tied to the other. Is there an overt thumb on the scale? Hopefully not, but this agreement erodes the degree of independence that should accompany the Government’s enforcement of laws.