Post-Katrina Aftermath: How the Labor Department Fell Down on the Job
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Today, he is the chief enforcer of that act, but in 2002, he wrote, "The FLSA presents unique challenges to employers. From the standpoint of compliance, the only risk-free way to manage exemption decisions is to designate all employees as non-exempt and to pay them on an hourly basis, but that option is inconsistent with sound business practices." In other words, complying with the law is bad for business.
The DOL's office in New Orleans was badly damaged by Katrina. According to Jennifer Rosenbaum of the Southern Poverty Law Center, its five-person staff shut down for nearly four months, even as Immigration and Customs Enforcement and non-profit groups had fully staffed operations up and running in the city by October 2005. When the Wage and Hour division finally resuscitated its operation in late 2005, it focused more on employer compliance assistance than on proactive oversight, such as targeting high-risk industries and performing unannounced inspections.
At the hearing, Kucinich noted that "the number of DOL investigations in New Orleans decreased from 70 in the year before Katrina to 44 in the year after Katrina, a 37 percent decrease." Workers and advocates said that many workers—men and women seeking to file claims—never met a single DOL enforcement officer in the field, never heard back from the officials with whom they made their claims by phone, and found that their claims had been lost or inexplicably delayed. These hurdles have consequences. With a two-year statute of limitations on the claims over which the Wage and Hour division has jurisdiction, a great bulk of the infractions will have become permanent injustices by 2008.
And yet, going forward, the DOL is retaining its focus. Though its Wage and Hour division is capable of debarring the general contractors when their subsidiaries fail to pay their workers, they do not make it a standard practice. In response to a question from Sen. Ted Kennedy (D-MA) during DeCamp's confirmation hearing to become Wage and Hour administrator last August, DeCamp said, "My understanding is that several are in process, where the remedy is being considered. And I believe it's at least two or three." None of the advocates asked about this could name a single example.
Today, the DOL's FY 2006-2011 strategic plan for enforcing workers rights laws relies more heavily on passive measures than on proactive ones, and, like so many Bush-era reports, speaks overwhelmingly of goals instead of strategies. In the lone paragraph of this 100-plus page plan that is devoted to ensuring that workers receive the wages due to them, it states that, "the Department will continue its outreach and education efforts to increase awareness of employment laws among employers, employees and other stakeholders. Other strategies include using quantitative and qualitative performance indicators and targets to increase performance, conducting independent reviews of the program to identify opportunities for improvements, and improving data collection processes, especially those related to wage determination."
By comparison, a 1999 plan released by the Clinton-era Wage and Hour division laid out an approach that included hiring dozens of additional investigators and targeting high-risk industries with preventive inspections, noting that inspections based solely around worker complaints "are not effective in securing widespread substantial compliance within an industry as a whole."
The debacle in New Orleans has sunk well below the point at which minor changes at the federal level could redress even a small percentage of the worker grievances of the last two years. It serves as a reminder, though, that an unprepared or unmotivated federal government can have serious consequences for the citizens that rely upon it. According to Ruckelshaus, in the case of the DOL, many of the necessary changes are practically revenue-neutral.
"The federal DOL has had community outreach arms before," she says. "They don't require huge staffs. What we need first is more strategic uses of existing resources." Only when the department revamps its approach will workers, in both the United States and from abroad, be able to trust that their rebuilding efforts in disaster zones will be met with just rewards.
