Department of Labor Inspections

We have become aware of heightened U.S. Department of Labor Wage and Hour Division inspections at packing sheds in the Upper Midwest.  This may be a localized issue, but we wanted to alert all of you and to ask you to share any information.

At this point, we understand that the inspections have (at least in part) involved the application of overtime rules for agricultural operations and the impact that commingling product from other farms may have on exemptions to those rules.

It is our understanding that the DOL inspectors have varying levels of access to facilities and documents, depending upon the nature of the inspection.  Therefore, facility operators may wish to seek legal counsel (ideally proactively) to ensure that they are properly complying with the inspectors in a way that maintains their rights.

Again, we want you to be aware of these activities and would appreciate any information that you can share regarding their scope.  We will provide additional information as it becomes available.

Employers are advised to visit the DOL Wage and Hour Division website: https://www.dol.gov/whd/regs/compliance/whdfs44.htm

Some basic information is provided below.

Fact Sheet #44: Visits to Employers
This Fact Sheet provides general information about the laws enforced by the Wage and Hour Division (WHD).

Purpose of Visit
WHD is responsible for administering and enforcing a number of federal laws which set basic labor standards, among them:

• The Fair Labor Standards Act
• The Family and Medical Leave Act
• The Migrant and Seasonal Agricultural Worker Protection Act
• The field sanitation standards of the Occupational Safety and Health Act
• The Employee Polygraph Protection Act
• Certain employment standards and worker protections under the Immigration and Nationality Act
• Government contracts prevailing wage statutes such as the Davis-Bacon and related Acts and the McNamara-O’Hara Service Contract Act
• Garnishment provisions of the Consumer Credit Protection Act
• Employee Benefits: The Ultimate Guide for Small Business Owners

An investigator from WHD may conduct an investigation to determine whether these laws apply to an employer. If the employer is subject to these laws, the investigator will verify that workers are paid and employed properly according to the laws administered, and that youths under age 18 are employed as provided by the child labor provisions. The WHD does not require an investigator to previously announce the scheduling of an investigation, although in many instances the investigator will advise an employer prior to opening the investigation. The investigator has sufficient latitude to initiate unannounced investigations in many cases in order to directly observe normal business operations and develop factual information quickly.

An investigator may also visit an employer to provide information about the application of, and compliance with, the labor laws administered by WHD.

Why is an employer selected for an investigation?
The WHD conducts investigations for a number of reasons, all having to do with enforcement of the laws and assuring an employer’s compliance. WHD does not typically disclose the reason for an investigation. Many are initiated by complaints. All complaints are confidential; the name of the worker and the nature of the complaint are not disclosable; whether a complaint exists may not be disclosed.

In addition to complaints, WHD selects certain types of businesses or industries for investigation. The WHD targets low-wage industries, for example, because of high rates of violations or egregious violations, the employment of vulnerable workers, or rapid changes in an industry such as growth or decline. Occasionally, a number of businesses in a specific geographic area will be examined. The objective of targeted investigations is to improve compliance with the laws in those businesses, industries, or localities. Regardless of the particular reason that prompted the investigation, all investigations are conducted in accordance with established policies and procedures.