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CLIENT ALERT: U.S. Department of Labor, Wage and Hour Division Sets Enforcement Record

Client Alert

In advance of Halloween, the U.S. Department of Labor announced the results of its Wage and Hour Division's (WHD) recovery efforts for Fiscal Year 2019, and it reads like a horror story.

The good news to lull you into a feeling of safety was that the 18,844 Complaints Registered was the fewest amount over the past 22 years or published records.

Even more reassuring was that that total number of Concluded Cases was the fewest since 2009/10.

NOW FOR THE SCARE...

the total amount of Wages Recovered was $322M!  This amount overwhelmingly surpasses the $260M average of total wages recovered for the previous five (5) years.  These wage recoveries do not include any data from civil litigation.

WHAT WERE THE VIOLATIONS?

As usual, the vast majority of enforcement actions were Unpaid Overtime - approximately 83%.  This includes the typical errors in calculating overtime for employees as well as the Misclassification of Independent Contractors.  

WHAT INDUSTRIES WERE HIT THE HARDEST?

The biggest increase in wage violations hit the Construction Industry, which saw a greater than 25% increase in back wages recovery from the previous year.  A similar increase struck Health Care, which increased just under 25% from FY 2018.  The Food Services and Hotels and Motels industries both saw significant decreases in violations from previous years.

WHAT DOES IT MEAN?

Frequent followers of these posts know we highlight that, each year, the annual budget of the Wage and Hour Division increases to allow more investigators and more enforcement action.  Emboldened with a record recovery, we can expect more and more investigations for years to come.  It means that Construction and Health Care employers need to take a close look at their wage and hour practices to ensure compliance.

For questions about your Wage and Hour practices, the recent changes to Overtime Exemption Thresholds, the Increase to Minimum Wage, or any other Labor + Employment questions, please contact any of our Team Members.  

Jeffrey C. Miller, Esq.

Labor + Employment Partner

BMD Cleveland | 200 Public Square | Suite 3270 | Cleveland, OH 44114


Telehealth Flexibility Updates: HIPAA, DEA, and CMS

The Covid-19 Public Health Emergency (PHE) officially ended on May 11, 2023. But what does that mean for telehealth, a field that expanded exponentially during the PHE? Fortunately, many of the flexibilities will remain intact, at least temporarily. This client alert presents a brief overview of the timelines that providers need to follow, but for a more comprehensive review of telehealth flexibilities and when they will end

WEBINAR SERIES RECAP | Ending the Public Health Emergency + Post-Pandemic Check-Up

Some may take the position that the rest of the country already returned to a new “normal” following the COVID-19 pandemic.  But healthcare providers continue to implement COVID protocols and navigate the ever-changing healthcare regulations at both the federal and state levels.  It is important for healthcare providers to take time for a “Healthcare Check-Up” with the start of 2023 and the ending of the Public Health Emergency (“PHE”).

Sharp Rise in False Claims Act Cases - Navigating the FCA Waters

Recently, on April 18, 2023, the United States Supreme Court heard arguments regarding the FCA’s scienter, or mental state, requirement. To prove violation of the FCA, the statute requires that a defendant “knowingly” file false claims for payment. The term “knowingly” is defined within the statute to mean a person that acts with actual knowledge, deliberate ignorance, or reckless disregard. Circuit courts are split on how to interpret and apply the knowledge element of the FCA, and based on the Supreme Court’s decision, there will be a large impact on healthcare defendants and their businesses as well as anyone who contracts with, or receives money from, a federal program. A broader interpretation of the FCA would unnecessarily target and stifle healthcare, and other businesses, for simple errors in daily operations. This goes against the intended application of the FCA, which was to prevent fraudulent activity.

Areas of Opportunity in Columbus: Highlights from the Columbus Opportunity Summit

On April 27, 2023 Columbus Business First held its annual Columbus Opportunity Summit, bringing together business and economic development leaders to provide an update on how Central Ohio is preparing for expected growth in the coming years, an issue heightened by the arrival of Intel at its 1,000 acre site in Licking County, just outside of Columbus. The site will be home to two new chip factories with room to grow to a total of eight factories and is a $20 Billion investment.

BREAKING: Biden Administration Has Officially Ended the Two Remaining COVID Vaccine Mandates

As of May 1, 2023, the Biden Administration has officially ended the two remaining COVID vaccine mandates: (1) the Federal Contractor Mandate, and (2) the CMS Healthcare Provider Vaccine Mandate.