By Pension and Benefits Editorial Staff
The Department of Labor (DOL) has issued a pre-publication version of a final rule to adjust the amounts of civil penalties assessed or enforced under its regulations. Those adjustment amounts pertain to regulations enforced by the DOL’s EBSA, Wage and Hour Division, OSHA, and other agencies.
Due to a lapse in appropriations funding for certain government agencies, including the Office of the Federal Register, publication of the DOL final Civil Penalties Inflation Adjustment Act Annual Adjustment for 2019 final rule has been delayed. The DOL has made the pre-published version of the final rule available for informational purposes only until the official version is published in the Federal Register. The unofficial version of the final rule is subject to review and revision by the Office of the Federal Register. The final rule will not go into effect until it is published in the Federal Register. The effective date will be the date of publication, and the increased penalty levels will apply to any penalties assessed after the effective date of the increase.
Inflation Adjustment Act. The Inflation Adjustment Act requires the DOL to annually adjust its civil money penalty levels for inflation no later than January 15 of each year. The Inflation Adjustment Act provides that agencies shall adjust civil monetary penalties notwithstanding Section 553 of the Administrative Procedure Act. Additionally, the Inflation Adjustment Act provides a cost-of-living formula for adjustment of the civil penalties. Accordingly, the pre-publication version of the final rule sets forth the DOL’s 2019 annual adjustments for inflation to its civil monetary penalties.
Adjustments enforceable by EBSA. Some of the other current and adjusted penalty amounts enforceable by the EBSA are as follows:
- For the failure to furnish reports such as pension benefit statements to certain former participants and beneficiaries or to maintain records, up to $30 per employee, up from $29;
- For the failure or refusal to file an annual report, up to $2,194 per day, up from $2,140;
- For the failure to provide the Secretary of Labor requested documentation not to exceed a per-request maximum, up to $156 per day, not to exceed $1,566 per request, up from $152 per day, not to exceed $1,527 per request.
- For the failure of a multiple employer welfare arrangement to file a report, up to $1,597 per day, up from $1,558;
- For the failure to provide a Summary of Benefits and Coverage, up to $1,156 per failure, up from $1,128;
- For the failure to provide notices of blackout periods and of right to divest employer securities, up to $139 (each statutory recipient a separate violation), up from $136; and
- For de minimis failures to meet genetic information requirements not corrected prior to a notice from the Secretary of Labor, a minimum of $2,919, up from $2,847.
FMLA penalty adjustments. Section 109(b) of the FMLA, as amended, and existing 29 CFR 825.300(a)(1) provide for assessment of a civil money penalty for each willful violation of the FMLA’s posting requirement. This penalty has increased from $169 to $173 for each separate offense.
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