by Following the recent enforcement guidance from the General Counsel of the National Labor Relations Board, another federal agency is alerting stakeholders to employer practices targeted for possible legal challenge. The U.S. Department of Labor (DOL) has published a report describing employer practices and policies that may be unlawfully coercive. The report, presented under the authority of the agency’s Solicitor of Labor (SOL), is titled “Special Enforcement Report.”
The SOL is authorized to sue employers for violations of the many laws enforced by the DOL, including the Fair Labor Standards Act, the Family and Medical Leave Act, and the laws addressing the employment obligations of federal contractors. The DOL has identified seven potentially coercive employer practices that may violate one or more of these laws.
The employment agreement terms the SOL is targeting for intensive review are:
- Attempts by employers to require workers to waive rights under wage and hour laws
- Misclassification of employees as independent contractors
- Indemnification provisions that shift liability from employers to workers for worker claim defense costs
- “Loser pays” provisions that require the worker to pay the employer’s legal fees if the worker loses a legal action against the employer
- “Stay-or-pay” provisions that require repayment of money paid by employers as hiring or stay bonuses, training, or tuition
- Confidentiality, non-disclosure, and non-disparagement provisions
- Requirements that workers report safety concerns to their employer before contacting a government agency
Professionals charged with advising employers on the legal consequences of employment policies and agreements should review the DOL report to better understand where the employer may be at increased risk of scrutiny by the federal government. https://www.dol.gov/sites/dolgov/files/SOL/reports/SOL2024-Enforcement-Report.pdf.
