Overtime Pay: Who is Protecting Your Rights?

Washington, DCWhen it comes to overtime pay who is protecting your rights? You might think the Department of Labor (DOL) is taking care of ensuring overtime laws are being properly followed. However, according to a March 2009, report from the Government Accountability Office (GAO), the DOL's Wage and Hour Division may not be doing all that well at enforcing overtime rules.

The GAO, in testimony given before The Committee on Education and Labor, said that it found the Wage and Hour Division (WHD), "frequently responded inadequately to complaints, leaving low wage workers vulnerable to wage theft." According to the GAO's report, the GAO filed 10 common complaints with the WHD, in which the GAO posed as fictitious complainants.

One of the fictitious situations involved a dishwasher in Miami, Florida, who complained that he did not receive overtime for an average of 4 hours per week for 19 weeks. The GAO says that the "employee" was told by a WHD investigator that it would take "8 to 10 months" to begin an investigation. Furthermore, the WHD did not return 4 phone calls over a 4-month period, in which the fictitious employee tried to determine the status of his complaint and the complaint was never recorded in the WHD's database.

"The undercover tests revealed sluggish response times, a poor complaint intake process, and failed conciliation attempts, among other problems," The GAO's report states. "In one case, a WHD investigator lied about investigative work performed and did not investigate GAO's fictitious complaint. At the end of the undercover tests, GAO was still waiting for WHD to begin investigating three cases—a delay of nearly 5, 4, and 2 months, respectively."

In addition to the fictitious complaints, the GAO says it identified 20 cases that involved at least 1,160 real employees, whose complaints were not properly investigated, including situations where the WHD took more than a year to respond to a complaint.

In one real overtime complaint, a mechanic alleged his employer owed him $525 in back wages but said that he thought his employer was filing for bankruptcy. The WHD allegedly dropped the case, noting that the employer declared bankruptcy. However, in December 2008, the GAO found that the employer had not declared bankruptcy and was still in business.

In another case a boarding school worker complained about overtime violations, but an investigator was not assigned to the case until 9 months after the complaint was received, according to the GAO. The WHD allowed the employer to conduct a self-audit and determined that the employer had started paying correct overtime based on information allegedly given by the employer. However, although the employer's self-audit found that 93 employees were owed over $200,000, the employer waited until the statute of limitations had almost run out and then offered to pay only $1,000 in back wages. The WHD rejected the offer, closed the case and let the complainant know what had happened.

Overall, the GAO found that the WHD does not fully investigate conciliations [which generally involve the WHD simply making phone calls to the complainant's employer because the issue involves only one employee and is a single, minor violation] and does not compel employers to pay employees properly. Perhaps most astonishing, the GAO says that WHD policy instructed some offices not to record conciliations that were unsuccessful, making the WHD's success rate appear rosier than it is in reality.

Additionally, the GAO testified that the WHD improperly rejected complaints based on false information given by employers, without properly investigating that information.

According to the GAO's, "By law, WHD investigators and technicians enforce labor laws governing issues such as minimum wage, overtime pay, child labor, and family medical leave." And yet, the GAO has found that the WHD failed to adequately investigate unpaid overtime worth thousands of dollars.

This does not mean that all of the complaints handled by the WHD are handled improperly. But, in some of the case studies cited by the GAO, employees were advised of their right to file a private lawsuit. The problem is that in some circumstances, the statute of limitations runs out before a suit can be filed and the employee is the one who suffers, while the employer gets away with not properly paying workers