ARLINGTON, Va. — The U.S. Department of Labor’s Mine Safety and Health Administration today announced that federal inspectors issued 186 citations, 25 orders and one safeguard during special impact inspections conducted at 11 coal mines and two metal and nonmetal mines in June.
The monthly inspections, which began in force in April 2010 following the explosion at the Upper Big Branch Mine, involve mines that merit increased agency attention and enforcement due to their poor compliance history or particular compliance concerns. The inspection details of one of the mines are listed below:
MSHA began an impact inspection at Dickenson-Russell Coal Co., LLC’s Cherokee Mine in Dickenson County, Virginia, on June 10. A member of the enforcement team traveled to the mine ahead of the inspection team and secured the mine’s communication systems to prevent advance notice. The inspection of underground belts and equipment and surface equipment and installations resulted in the issuance of 25 104(a) citations and five 104(d)(1) unwarrantable failure orders. This was the first impact inspection at this mine.
Among the conditions found were the accumulation of combustible materials in the form of black and dry float coal dust along one of the mine’s belts. The float coal dust had accumulated on areas of the belt structure including rails, chains, tail piece, ribs, head drive electrical cable and guards. A buildup of coal dust places miners at serious risk to explosions.
MSHA issued an unwarrantable failure order for insufficient air velocity on the belt air course. Using an anemometer, an instrument that measures the volume of air entering and exiting a mine, inspectors detected no air movement in the belt entry. The lack of such movement can lead to the buildup of dangerous gases in the air and a potential mine explosion. Enforcement personnel issued another order when the mine allowed diesel equipment to operate in an entry with no air movement.
Furthermore, a roof -bolting machine had not been properly examined, tested and maintained. Numerous hazardous conditions were observed even though the examination records dated three days prior indicated no detection of hazards. Mechanical fasteners were missing, bare ground wires were exposed, and cables were not insulated properly and fully protected. One 104(d)(1) order was issued for an inadequate pre-shift examination along four belts where the examiner failed to record and post the hazardous conditions found, such as float coal dust, draw rock, belts rubbing against the structure and bottom hangers, and inadequate ventilation.
In a June 24 impact inspection at Rhino Eastern LLC’s Eagle Mine 3 in Wyoming County, West Virginia, MSHA found dozens of violations in which the mine operator failed to follow approved ventilation, methane and dust control plans, which resulted in closure orders.
“Conditions found at both Rhino and Cherokee that led to closure orders put miners at risk of explosions,” said Joseph A. Main, assistant secretary of labor for mine safety and health. “The dust conditions at the Rhino mine also exposed miners to black lung disease. The new respirable dust regulations, which go into effect on Aug. 1, are aimed at curbing the disease and will address these type of operator shortfalls,” he said.
Since April 2010, MSHA has conducted 780 impact inspections and issued 12,627 citations, 1,170 orders and 54 safeguards.
Court enjoins employer, cites retaliation against employees
LOS ANGELES — The U.S. Department of Labor has obtained a consent judgment from the U.S. District Court for the Central District of California ordering Alkanan Inc., doing business in six locations as Recycling Innovation and Valley Recycling, and its owner Karim Ameri, to pay $77,000 to 13 workers in back wages, damages and penalties for failing to pay at least the federal minimum wage and overtime, in violation of the Fair Labor Standards Act. The court also entered an injunction restraining the employer from violating the FLSA in the future and retaliating against any employee who files a complaint with, or cooperates in an investigation by, the department’s Wage and Hour Division.
“Workplace intimidation, such as threatening to fire, deport or physically harm an employee who exercises his rights is completely unacceptable,” said Kimchi Bui, district director for the Wage and Hour Division in Los Angeles. “The department will not tolerate such tactics and will use every legal tool available to protect workers and hold employers accountable.”
Investigators with the division’s Los Angeles District Office determined that Alkanan violated the FLSA’s overtime and minimum wage requirements at its locations in Northridge, Reseda, Winnetka and Van Nuys by only paying a daily cash rate between $55 and $65 for up to 10 hours of work per day, six or seven days per week, far below the federal minimum wage rate of $7.25 per hour. The employer also retaliated against workers whom he believed provided information to the department’s investigators by threatening to fire and deport employees and use physical violence. Alkanan also failed to keep accurate and complete records of work hours.
The division first learned of this employer’s practices through the Employment Education and Outreach partnership, known asEMPLEO. Now in its 10th year, EMPLEO is an alliance of organizations and government agencies that assists Spanish-speaking workers and employers. EMPLEO’s toll-free helpline at 877-55-AYUDA (552-9832) is staffed by trained volunteers from the Diocese of San Bernardino, which refers callers to appropriate partners.
The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 per hour, as well as time and one-half their regular rates for every hour worked beyond 40 per week. The law also requires employers to maintain accurate records of employees’ wages, hours and other conditions of employment and prohibits employers from retaliating against employees who exercise their rights under the law. The FLSA provides that employers who violate the law are generally liable to employees for their back wages and an equal amount in liquidated damages, which are paid directly to the affected employees.
WEST COVINA, Calif. — GM Sager Construction Inc. has agreed to pay $146,092 in overtime back wages and an equal amount in liquidated damages to 26 workers after an investigation by the U.S. Department of Labor found the Pomona, Calif.-based concrete and asphalt paving contractor in violation of the Fair Labor Standards Act’s overtime and record-keeping provisions. The employer also agreed to record all hours worked accurately, including travel time.
“Employers must record and pay for all hours of work,” said Daniel Pasquil, director of the Wage and Hour Division’s West Covina District Office. “This includes travel time between work sites. We urge all employers to review their pay practices to ensure compliance.”
Investigators established that GM Sager Construction Inc. failed to pay 26 employees for their travel time between the last job site to the company’s yard at the end of each day and for work once employees returned to the yard. The employer failed to record and count this time as hours worked.
The FLSA requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour. Earnings may be determined on a piece-rate basis, but overtime pay must be computed using the employee’s average hourly rate. The law also requires employers to maintain accurate records of employees’ wages, hours and other conditions of employment, and prohibits employers from retaliating against employees who exercise their rights under the law.
WASHINGTON — U.S. Secretary of Labor Thomas E. Perez released the following statement on the five-year anniversary of the last increase in the federal minimum wage:
“It’s been exactly five years since workers at the bottom of the income ladder have gotten a raise. Since then, the cost of a gallon of milk, a week of child care, a month’s rent and everything else a working family needs has gone up. But the federal minimum wage remains frozen at $7.25 per hour.
“President Obama believes five years is far too long, and a clear majority of Americans agree. Too many people are working harder but falling further behind, and it’s just plain wrong that men and women working full-time in America should have to raise their families in poverty.
“A minimum wage increase to $10.10 would benefit 28 million people, giving them a little bit of breathing room and peace of mind. And it would help their bosses as well. As I’ve traveled around the country, employers of all sizes and in varied sectors have told me they see higher wages as a sound business investment. They know that it boosts productivity and reduces training costs. They know that, in an economy driven by consumer demand, more money in people’s pockets means more customers for them. This isn’t just anecdotal — a recent poll shows that more than 3-in-5 small business owners support a $10.10 minimum wage.
“Thirteen states and the District of Columbia, responding to grass-roots energy in their communities, have increased their minimum wages since the beginning of 2013. And the president has signed an Executive Order mandating a $10.10 minimum wage for workers under federal service contracts. But still, Congress has failed to act on behalf of all workers.
“This step is long overdue. Our workers need it and they’ve earned it. After five years, it’s time to reward hard work and raise the wage.”
Ongoing initiative reveals evasive pay practices in the temporary staffing industry
HOUMA, La. — B & D Contracting Inc., a labor recruiting and staffing agency that caters to oil field services and maritime fabrication facilities along the Gulf Coast, has agreed to pay $1,660,438 in back wages to 1,543 current and former employees. An investigation by the U.S. Department of Labor found that the company engaged in improper pay and record-keeping practices that resulted in employees being denied overtime compensation in violation of the Fair Labor Standards Act. The employees were assigned to client work sites throughout Louisiana, Mississippi and Alabama to work as welders, pipe fitters, shipfitters and other classifications that serviced clients’ needs.
Investigators from the Wage and Hour Division’s New Orleans District Office found the company mischaracterized certain wages as per diem payments and impermissibly excluded these wages when calculating overtime premiums, denying employees earned overtime compensation.
“Temporary staffing agencies serve valuable and legitimate business needs in today’s economy,” said Dr. David Weil, administrator for the Wage and Hour Division, “But employers may not manipulate these arrangements and use evasive pay practices to avoid paying workers their rightful wages.”
“The labor violations we found in this case are not unique to B & D Contracting Inc.,” said Cynthia Watson, regional administrator for the division in the Southwest. “We are increasingly finding the use of per diem schemes as a means of decreasing overtime pay and tax obligations in the staffing and support services industry in this region. The resolution of this case demonstrates our continued focus on combating such labor violations in order to improve compliance in this industry.”
Following the investigation, B & D Contracting agreed to pay back wages owed to employees. The company also signed a settlement agreement with the department, committing itself to implement specific measures to prevent future FLSA violations. These measures include: setting standards to accurately identify and compensate workers who qualify for bona fide per diem payments; paying accurate overtime and ensuring per diem payments are not automatically excluded from overtime calculations; informing employees about their pay and employment conditions; and obtaining written acknowledgment from employees that they understand the criteria for receipt of per diem payments.
Additionally, B & D Contracting agreed to maintain accurate records demonstrating that employees received bona fide per diem payments and that such payments are based either on applicable Internal Revenue Service guidelines or upon a reasonable approximation of the expenses incurred.
Pursuant to the department’s partnerships with the IRS and the Louisiana Workforce Commission, this case has also been referred to those agencies for review under their respective laws.
This investigation was conducted under the Wage and Hour Division’s ongoing initiative focused on strengthening labor compliance among temporary labor providers, such as staffing and support services companies in the Gulf Coast region. The division’s enforcement and compliance assistance efforts are focused on identifying and remedying labor violations involving temporary employment arrangements, and the agency is also working with stakeholders and state agencies to ensure compliance with all applicable laws. Between fiscal years 2011 and 2013, the division’s New Orleans District Office conducted 24 investigations in the temporary help industry securing more than $2.5 million in back wages for more than 3,000 workers.
An employee’s regular pay rate, upon which overtime must be computed, includes all wages for employment, except certain payments excluded by the FLSA, such as reimbursements for work-related expenses. Payments reasonably approximating travel or other expenses incurred on the employer’s behalf may be excluded from the employee’s regular rate of pay when computing overtime. However, where an employee receives such payments but actually incurs no such additional expenses, such payments do not constitute bona fide reimbursements and must be included in the employee’s regular rate of pay for purposes of computing an overtime premium.
The FLSA requires that covered employees be paid at least the national minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. Employers also must maintain accurate time and payroll records.
CORPUS CHRISTI, Texas — An employee of Nueces Electrical Co-op in Corpus Christi has received $46,920 in back wages and damages after an investigation by the U.S. Department of Labor’s Wage and Hour Division found the company in violation of the Family and Medical Leave Act.
“The FMLA protects eligible workers from having to choose between work and family care or personal medical leave needs,” said Cynthia Watson, regional administrator for the Wage and Hour Division for the Southwest. “When employees are unlawfully denied leave and their livelihoods put at risk, the potential for harm is great.”
The division’s McAllen District Office found that the employer, a company that provides electrical services to Corpus Christi and surrounding areas, wrongfully advised the employee to retire or face termination of employment for needing leave for an FMLA-qualifying health condition. The employer’s actions forced the employee, who was entitled to receive FMLA job-protected leave, to cash out a 401(k) savings plan, which incurred significant penalties. The employee suffered wage losses, resulting in loan defaults and an inability to pay essential bills.
In addition to the monetary damages, the company neglected to provide proper FMLA notice to the employee. Under the FMLA, a covered employer must notify eligible employees of their FMLA rights and responsibilities and permit employees to take leave as outlined in the FMLA.
Nueces Electrical Co-op has agreed to future compliance with the FMLA and instituted new policies to prevent future violations.
The FMLA allows an eligible employee to take unpaid leave to bond with a newborn, newly adopted or placed child, for their own serious health condition, or to care for a seriously ill child, spouse or parent, without fear of losing their job and with continuation of health care coverage under the same terms and conditions as if the employee had not taken leave. FMLA leave may also be taken for specified reasons related to certain military deployments and to care for a covered service member with a serious injury or illness. An employer is prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, an FMLA right. Prohibited conduct includes refusal to authorize FMLA leave for an eligible employee.
Restaurant had illegal tip pool arrangement
AMARILLO, Texas — Big Texan Steak Ranch has agreed to pay $650,000 in minimum wage back wages and $150,000 in liquidated damages to 279 current and former wait staff following an investigation by the U.S. Department of Labor’s Wage and Hour Division, which found violations of the Fair Labor Standards Act’s minimum wage and record-keeping provisions. Violations stemmed from an illegal tip pooling arrangement by the restaurant.
“Through investigations such as this one, the Wage and Hour Division continues to combat widespread labor violations among restaurants to protect workers and to ensure a level playing field for law-abiding employers,” said Cynthia Watson, regional administrator for the Wage and Hour Division in the Southwest. “The restaurant industry employs some of our country’s lowest-paid workers, who are vulnerable to exploitation. We will continue our effort in the restaurant industry to promote awareness and improve compliance, so workers and businesses can prosper together.”
The investigation by the Wage and Hour Division’s Albuquerque District Office determined that Big Texan illegally retained a portion of the restaurant workers’ tips to pay for business costs, such as menus, glassware, trays and contest prizes. The employer also made illegal deductions from workers’ paychecks for uniforms and withheld additional percentages of tips as a disciplinary tactic, bringing those workers’ hourly wages below the required federal minimum wage. Additionally, the company failed to maintain accurate time and payroll records.
The FLSA requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular rates of pay for hours worked beyond 40 per week. In accordance with the FLSA, an employer of a tipped employee is required to pay no less than $2.13 an hour in direct wages, provided that amount plus the tips received equals at least the federal minimum wage of $7.25 an hour. If an employee’s tips combined with the employer’s direct wages do not equal the minimum wage, the employer must make up the difference. Employers are required to provide employees notice of the FLSA tip credit provisions, to maintain accurate time and payroll records and to comply with the hours, hazardous orders and other restrictions applying to workers under age 18.
MSHA publishes proposed rule on civil penalty assessments
Proposal simplifies process, improves consistency with emphasis on more serious conditions
ARLINGTON, Va. — The U.S. Department of Labor’s Mine Safety and Health Administration announced today it will publish a proposed rule that would amend its existing civil penalty regulations by simplifying the criteria for assessing health and safety violations and increasing emphasis on more serious safety and health conditions, thus providing improved safety and health for miners. The proposed rule will be published in the Federal Register on July 31.
“This proposed rule would simplify the process and increase consistency, objectivity and efficiency in the citations and orders that inspectors issue. Furthermore, it would facilitate improved compliance and early resolution of enforcement issues,” said Joseph A. Main, assistant secretary of labor for mine safety and health.
MSHA’s proposal is structured to encourage operators to be more accountable and proactive in addressing safety and health conditions at their mines. Under the proposal, total penalties proposed by MSHA and the distribution of the penalty amount by mine size would remain generally the same; however, the penalty amount for small metal and nonmetal mines would decrease. The existing minimum penalty of $112 and the maximum penalty of $70,000 for non-flagrant violations would not change, but minimum penalties for unwarrantable failure violations — that is, violations that constitute more than just ordinary negligence — would increase to provide a greater deterrent for mine operators who allow these violations to occur.
In early 2010, Main testified before Congress about the growing backlog of contested civil penalty cases. Among the solutions he proposed was making the evaluation and writing of citations simpler, more objective, clear and consistent. The following year, President Obama issued an Executive Order requiring agencies to review and simplify their regulations. The proposed rule is responsive to those concerns.
“MSHA has implemented a number of initiatives to encourage mine operators to find and fix conditions and practices that could lead to violations, and we believe those efforts have led to improved safety and health conditions in mines,” said Main. “The number of violations cited by MSHA has decreased, as has the backlog of contested cases. The proposed rule will improve the civil penalty process, and we welcome comments from the entire mining community.”
July 14, 2014
Farm operation previously ordered to stop misclassifying migrant workers
GRAND RAPIDS, Mich. — Copemish employer Darryl Howes, doing business as Darryl Howes Farms, signed a consent judgment under which he agreed to pay $11,253 in back wages to 36 migrant workers to resolve a lawsuit filed by the U.S. Department of Labor. Howes has agreed to implement enhanced record-keeping procedures to ensure the business complies with the record-keeping provisions of the Fair Labor Standards Act.
The consent judgment resolves a federal lawsuit filed by the department alleging minimum wage, record-keeping and housing violations and alleges that Howes unlawfully interfered with the Wage and Hour Division’s investigation. The Wage and Hour Division’s investigation revealed that Darryl Howes Farms misclassified its migrant agricultural workers as independent contractors rather than employees entitled to minimum wage and other protections of the FLSA and the Migrant and Seasonal Agricultural Worker Protection Act. The back wages due must be paid within 10 days of the consent judgment being entered by the court.
“This consent judgment sends a clear message to farm operations that denying workers their rightfully earned wages by misclassifying them as independent contractors will not be tolerated, and that wage laws will be enforced,” said Mary O’Rourke, district director for the Wage and Hour Division in Grand Rapids. “The department is committed to protecting the many low-wage migrant workers who deserve the wages they earn.”
In earlier case proceedings, U.S. District Judge Gordon J. Quist issued an opinion and order that upheld the department’s findings of record-keeping and housing violations during the 2011 harvest at Howes’ 60-acre cucumber farm and migrant housing camp. The court ruled previously that Howes provided substandard housing to migrant workers at a housing camp he controlled, in violation of the MSPA. The violations at the housing camp included failures to provide adequate shelter; to prevent insect or pest infestation; to remove standing wastewater; to repair broken screen doors and showers; and to maintain toilets in a sanitary condition. The court ordered Howes to ensure all MSPA housing he owns or controls complies with the MSPA. The court previously held that Howes interfered with the department’s investigation by impeding the department’s confidential interviews with his employees.
The Wage and Hour Division enforces the MSPA, which protects migrant and seasonal agricultural workers by establishing employment standards related to wages, housing, transportation, disclosures and record keeping. The division also enforces the FLSA, which requires covered employers to pay nonexempt farm workers at least the federal minimum wage for all hours worked.