Law and Arbitration Offices of Donald T Ryce

The Department of Labor is the administrative agency charged with responsibility for enforcing, among other laws, the Fair Labor Standards Act. DOL, through its Wage and Hour Division, has authority to conduct investigations to determine if employers are in compliance with the FLSA. Because DOL also has the power to settle disputes resulting from its investigation and, if efforts to resolve the dispute fail, to bring a lawsuit seeking monetary and injunctive relief, what happens during the investigation can be critical.

With respect to its general investigative powers, DOL may enter and inspect an employer’s premises and records, transcribe records, and question employees to determine if a statutory violation has occurred. During the investigation, DOL has authority to issue subpoenas for records and other information and to enforce them in federal court.

The investigative function of the DOL under the Fair Labor Standards Act in searching out violations with a view to securing enforcement of the Act, is essentially the same as the grand jury's or the court's in issuing other pre-trial orders for the discovery of evidence, and is governed by the same limitations, which are that it shall not act arbitrarily or in excess of its statutory authority; but this does not mean that its inquiry must be limited by forecasts of the probable result of the investigation. Oklahoma Press Pub. Co. v Walling, 327 US 186 (1946).

Generally speaking, DOL does not have an obligation to provide procedural due process during the course of its investigation into whether a particular employer has violated the law. See Hannah v. Larche, 363 U.S. 420 (1960); Oklahoma Press Pub. Co. v Walling, 327 US 186 (1946). The reason is that, during a legitimate investigation, an investigating agency "does not make any binding orders or issue ‘clearances’ or licenses having legal effect. Rather, it investigates and reports leaving affirmative action, if there is to be any, to [others]." Hannah, 362 U.S. at 452.

Usually it benefits an employer to cooperate with the investigation. It is to be expected that wage/hour investigations will be somewhat disruptive for the employer, and that alone does not provide a legitimate basis for objection. In rare cases, however, DOL may so abuse its powers during an investigation as to call the legitimacy of its actions into question and to raise due process concerns. Signs of an abusive investigation are unreasonable demands by the investigating agent unauthorized by the regulations, such as giving inadequate time for the employer to respond to document requests, conducting coercive interviews which prompt unsolicited employee complaints about the interviewer, or engaging in improper efforts to interfere with an employer’s relationship with its customers. If you are facing this kind of investigation, you should seriously consider retaining an attorney to protect your interests.