by Erik Dullea and Sonia Anderson
Department of Labor press releases issued during April suggest that DOL, including OSHA and MSHA, may have returned to the aggressive public relations strategy of calling out companies by name, which was utilized during the previous administration. Former head of OSHA, Dr. David Michaels, reportedly called this strategy “regulation by shaming.”
Under this approach, DOL agencies use press releases and other publicity tools to broadcast details of enforcement actions against companies accused of violating rules – even when those enforcement actions are still just allegations. Unsurprisingly, DOL and OSHA have not similarly promoted those occasions when the employer won the case because the Department could not prove its allegations.
The agencies likely believe that the risk of public scrutiny would encourage other companies to fall into line and maybe even bring pressure on the named companies to agree to aggressive settlements.
The year started quietly. Between January 21st and March 31st of this year, the vast majority of DOL’s press releases focused on compliance assistance, outreach efforts and training opportunities. But, that approach may have ended in April based on the activity below:
- Wage and Hour Division announced four enforcement actions with penalties exceeding $600,000 in back wages and liquidated damages.
- OSHA announced the results of one whistleblower investigation and one fatal accident investigation. Describing both actions, OSHA relied solely on its own investigations, as no adjudicative proceedings have occurred.
- DOL’s Office of Federal Contract Compliance Programs (OFCCP) announced two enforcement actions and that it settled a case that arose over two decades ago in 1993. During April alone, OFCCP announced it issued penalties exceeding $2.6 million.
- MSHA announced the settlement of one enforcement action and included significant detail regarding the allegations arising from the investigation.
- DOL Employee Benefits Security Administration announced one consent judgment with the sole owner and president of a company accused of withholding funds from the company’s 401(k) Plan.
Issuing ten press releases in three weeks resembles DOL’s pace from 2016. Why has DOL reverted to using press releases to embarrass employers even when some of its allegations have not been through any judicial proceedings? Perhaps DOL and its agencies feel emboldened by the Department’s lack of leadership.
An April 12th Wall Street Journal article described the open ‘rebellion’ against the new President by loyalists to Tom Perez, the former DOL Secretary who began his tenure as Chairman of the Democratic National Committee by asking for resignations from the entire DNC staff.
With Alexander Acosta’s confirmation by the Senate yesterday as the new Secretary of Labor, he should begin by providing clear direction to DOL agencies on their enforcement and publication strategies. In the meantime, companies are on notice that “regulation by shaming” continues.
Employers who are facing potential enforcement actions with DOL agencies should consult with their counsel for advice on how best to preempt and protect against the risks of such negative PR.