Through NAHC’s partnership with Littler Mendelson P.C Labor & Employment Law Solutions, we are excited to share the “Ask the Experts” Article. Each week, we will feature a new question, from you our members, related to workplace issues and topics that will be answered from our experts and partners at Littler.
This week’s question comes from our private duty home care advisory board members and concerns the recent announcement about the Department of Labor’s PAID program.
Question: What does it mean that the U.S. Department of Labor (DOL) has ended its Payroll Audit Independent Determination (PAID) program last Friday (January 29, 2021)?
Answer by Will Vail of Littler Mendelson
The PAID program began in March 2018 and allowed employers an alternative method to rectify overtime and minimum wage violations of the federal Fair Labor Standards Act (FLSA) without the worry of an extended statute of limitations, penalties, and threat of private litigation or attorneys’ fees. The Wage Hour Division repeatedly touted the program’s success (the most recent numbers – from this past summer – show that it collected more than $7 Million in wages for 11,000 workers). In its press release announcing the end of the program, however, the DOL indicated that the resources and outreach provided by the Wage and Hour Division to employers are sufficient to help employers comply with the FLSA “without relieving them of their legal obligations.”
Under the PAID program, employers were able to self-report a wage violation, submit a calculation of back wages to the DOL, and enter into an agreement to pay 100% of back wages owed over a two-year period. In turn, the DOL would supervise and approve the settlement permitting employees to issue a valid release of the claim, limited to the reported issue. The DOL agreed not to seek a third year of back wages, liquidated damages, or civil money penalties, and kept the identity of reporting employers confidential, subject to FOIA requests. As an additional incentive for employers to participate in the PAID program, the DOL agreed not to investigate the underlying merits of the issue that the employer self-reported; instead, its review was limited to the back wage calculations prepared by the employer for accuracy.
Without the self-reporting PAID program, the only two options available to release FLSA claims are through a court-approved settlement or as a result of a DOL-initiated investigation. The PAID program did not release any state law claims, which was why some employers did not avail themselves of it, but the program did allow for significant relief for employers to correct issues without the threat of additional litigation or negative publicity.
Even without the added benefits of the PAID program, employers should continue to be proactive to audit pay records and correct potential wage issues if identified. This is particularly true for the at-home care industry (home health, hospice and home care). Even under the previous administration, there was substantial litigation against companies in this industry.
Big picture, this likely is an example of the new administration’s stance on employment matters generally. It is likely going to take a stricter enforcement posture with companies. Indeed, the new administration has already added more than a dozen new political appointees to the DOL, including in the Solicitor’s office (the part of the DOL that litigates against employers).
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About Will Vail, Special Council
William Vail brings a wealth of private practice and in-house experience to every matter he handles. For nearly seven years, he was lead employment counsel two separate divisions of largest post-acute health care provider in the nation (the home health, hospice and community care division and nursing center division). He later was lead employment and litigation counsel for the largest home health and hospice provider in the nation following a corporate reorganization. In addition to a wide variety of employment issues, Will is familiar with False Claims Act, professional liability and general liability matters related to healthcare operations.
Will is a core member of Littler’s healthcare practice group. He has experience litigating across the United States, providing advice and counsel to both legal and non-legal stakeholders, performing due diligence related to mergers and acquisitions, helping start-ups begin operations in a compliant method, winding down operations, conducting management training, and assisting in the integration of new entities into going concerns.
William Vail began his legal career in 2004 as a law clerk to a federal judge sitting in the Western District of Virginia. He then transitioned to private practice in Louisville, Kentucky, for a regional full-service firm and later a national labor and employment boutique firm. At Littler, Will is based in Louisville as well as Atlanta.
*Not licensed to practice law in Georgia