DOL to Begin Assessing Liquidated Damages in Wage and Hour Audits

In a presentation to labor and employment attorneys in Denver on Feb. 16, Assistant District Director of the U.S. Department of Labor Amy DeBisschop said that the DOL will begin assessing liquidated damages in addition to back pay for violations found in wage and hour audits. She said that this has already begun in other districts. Liquidated damages are assessed in an amount equal to the back pay amount, effectively doubling what employers must pay to employees. Ms. DeBisschop could not be precise about the situations in which liquidated damages would be assessed, but said it would likely involve cases the DOL is considering for litigation. Ms. DeBisschop’s district covers Colorado, North Dakota, and South Dakota.

Ms. DeBisschop said that the most common wage and hour violations seen by her office are:

1.     Misclassification of employees as independent contractors
2.     Misclassification of nonexempt employees as exempt employees
3.     Failure to include missed meals, off-the-clock work, and meetings in hours worked
4.     Failure to pay overtime on nondiscretionary bonuses to nonexempt employees
Most wage and hour audits are complaint-based; however, Ms. DeBisschop reminded the group that the DOL also does “directed” audits focusing on problems in specific industries or geographic areas. She confirmed that DOL offices tell one another when violations are found in employers who operate in more than one district. And, she said that civil money penalties, in addition to back pay and liquidated damages, are imposed for child labor violations and where repeat violations are found in reinvestigations of employers previously audited.