Plaintiffs Bar To Pick Up Wage-And-Hour Slack Under Trump

Law360 Braden Campbell
February 1, 2017

Regardless of who ultimately heads it, President Donald Trump’s Department of Labor will likely administer federal wage-and-hour laws with less vigor than its predecessor did, attorneys say, and whether this is viewed as cause for concern or a mild change to recent pattern depends on whom these attorneys represent.

To some on the plaintiff side, Trump’s inauguration means the weakening of an ally that prioritized workers whose small-money wage claims don’t have private attorneys rushing to their aid.

But given the surge in popularity of wage-and-hour suits and the relatively small slice of that growing pie Obama’s DOL carved out, their adversaries on the management side say these worries are overblown.

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While the Fair Labor Standards Act was an afterthought just a few decades ago, these days the wage-and-hour space is among the hottest areas of employment law.

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The federal government has ramped up its wage-and-hour enforcement in tandem with this trend and made the FLSA a cornerstone of its enforcement philosophy.

Between 1985 and 2006, the DOL’s wage-and-hour division opened just over 55,000 cases, according to data from the agency’s enforcement database. It has opened more than 183,000 cases in the decade since, with the vast majority of these involving the minimum wage and overtime provisions of the FLSA.

These actions have been highly effective: In the last five years, the wage-and-hour division has recovered more than $1.2 billion in back wages for workers.

The forces that have made wage suits the class action du jour aren’t about to be undone en masse. But plaintiff’s-side attorneys worry the Trump administration could reduce the number of wage cases brought by the DOL, potentially leaving individual workers whose cases aren’t as attractive to private attorneys without the agency as an ally.

These worries are based in beliefs that Trump will go easier on businesses than Obama and that his nominee for secretary of labor, CKE Restaurant Holdings Inc. CEO Andy Puzder, won’t put much force behind the DOL’s mandate to protect workers.

The Trump administration and its pick for secretary of labor certainly send a message to American businesses that at least one of the traditional watchdogs is no longer going to be very vigilant, ” said Outten & Golden LLP class action group co-chair Justin Swartz.

Opponents of Puzder’s nomination for labor secretary have cast CKE chains such as Carl’s Jr. and Hardee’s as among the worst labor law violators among American restaurants.

According to fast food worker group Fight for $15, 60 percent of CKE brand restaurants investigated by the DOL since 2009 were found to have violated labor laws.

In addition, the DOL’s Occupational Safety and Health Administration has found 98 safety violations at Carl’s Jr. and Hardee’s locations since Puzder became CEO.

In recent years, plaintiff’s-side attorneys have relied on the DOL to fight for low-wage workers and even referred such workers to the agency when resources don’t allow them to take a case. They’re not counting on this same support from Puzder’s DOL should he be confirmed as secretary.
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Puzder has faced some of the most vigorous opposition among Trump cabinet nominees, with Senate Democrats and worker advocates frequently blasting him as a poor fit for the DOL’s top job. On Tuesday, his hearing was pushed back for a fourth time to allow Puzder more time to file financial disclosures and lay out how he would avoid conflicts of interest.

But even if Puzder’s nomination is blocked, it’s likely Trump’s ultimate pick for labor secretary will share his business-friendly sentiments, experts say.
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