The Trump administration promised to make federal agencies friendlier toward businesses and employers, and some progress has been made on that goal. Recently, the Department of Labor has taken steps to encourage assisted, voluntary compliance with wage and hour laws.
A panel at a recent American Bar Association conference identified two such areas — DOL opinion letters and the PAID program — along with another issue many employers should be aware of, H-1B visa compliance.
Concerned about compliance? Ask for a DOL opinion letter
For the first time since 2010, the Department of Labor has begun issuing official opinion letters. These letters offer the DOL’s official interpretation of specific fact situations presented by organizations, employees and other parties. Your company can request an opinion letter on federal wage and hour law or anything in the agency’s purview. The letters are binding on the agency, so even if you aren’t the requesting party, you can rely on the interpretation advanced in the letter.
Important note: Opinion letters are not available if you’re under a DOL investigation or involved in a lawsuit with employees.
For wage and hour questions, request a PAID program audit review
As long as your organization is not under investigation by the Department of Labor or in litigation with employees, you can also participate in the Payroll Audit Independent Determination (PAID) program, which was launched this year.
Employers perform a self-audit of minimum wage, overtime and employee classification issues, then submit this audit to the DOL. The agency will perform a detailed review of whether the employer is in compliance with the Fair Labor Standards Act and calculate any wages owed to employees. It will then present a settlement offer to any affected employees so they can be promptly paid without a lawsuit or enforcement action. If the employees agree to the settlement, they sign a release of claims.
One caveat: The PAID program audit only covers federal issues, so parallel state issues could still remain.
Make sure you’re in compliance with H-1B visa rules
The H-1B is a temporary work visa that is most usually offered to degreed professionals working in so-called “specialty occupations” where American workers are scarce. Examples of specialty occupations include engineering, scientific research, medicine, financial analysis and statistics.
The Trump administration is cracking down on employers who abuse the H-1B visa program. This could involve sponsoring visa applicants with insufficient education, hiring them for jobs that don’t qualify as specialty occupations, or bringing in foreign workers when U.S. applicants are available. Employers should scrutinize their H-1B hiring programs for compliance issues.