DOL increases FLSA and FMLA penalties
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Monday, March 11, 2019

DOL increases FLSA and FMLA penalties

By Payroll and Entitlements Editorial Staff

The U.S. Department of Labor has announced annual adjustments to the civil penalties for laws under its jurisdiction, including the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA), for 2019 The penalty increases are mandated by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (P.L.114-74), which required agencies to adjust the levels of civil monetary penalties with initial catch-up adjustments in 2016, followed by annual adjustments for inflation.

Minimum wage and overtime violations. The FLSA provides for the assessment of civil penalties against any person who repeatedly or willfully violates the law’s minimum wage or overtime requirements. For 2019, the maximum penalty increases to $2,014 per violation, up from $1,964 per violation for 2018.

Under the DOL regulations, a violation will be deemed to be repeated if the employer previously violated the rules and received notice from the DOL’s Wage and Hour Division (WHD). A violation will also generally be deemed to be repeated if a court previously made a finding that the employer had violated the minimum wage or overtime rules. A violation is considered willful if the employer knew that its conduct was prohibited by the FLSA or showed reckless disregard for the requirements of the law. An employer’s conduct will be deemed knowing if, among other situations, the employer received advice from a WHD official that the conduct in question was not lawful.

The new penalties are maximum limits on the amount that can be assessed. In determining the amount of a penalty, the DOL will consider the seriousness of the violations and the size of the employer’s business. DOL will also consider other relevant factors, including whether the employer made good faith efforts to comply, the employer’s explanation for the violations, the employer’s previous history of violations, the employer’s commitment to future compliance, the interval between violations, the number of employees affected, and any pattern of violations.

Child labor violations. The FLSA provides three levels of penalties for violations of the child labor provisions [29 U.S.C. §216(e)(1)A)].

  • A first-tier penalty may be imposed for each employee who was the subject of any child labor violation. For 2019, the first-tier penalty increases to $12,845 (up from $12,529).
  • A higher civil penalty may be imposed for a violation of the child labor provisions that causes the death or serious injury of any employee under the age of 18. The higher penalty increases to $58,383 (up from $56,947).
  • The maximum penalty for a violation that causes the death or serious injury of an employee under age 18 may be doubled if the violation is repeated or willful. The new maximum penalty is $116,766 (up from $113,894).

Family and medical leave. Employers are required to post a notice informing employees of their rights under the FMLA. The law and DOL regulations provide for the imposition of civil money penalties for each willful violation of the posting requirement. For 2019, the penalty is increased to $173 for each violation (up from $169). (Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2019; January 15, 2019; https://www.dol.gov/asp/civil-penalties-adjustments.htm.)

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