The FLSA provides for the assessment of civil money penalties against any person who repeatedly or willfully violates the law’s minimum wage or overtime requirements [29 U.S.C. §216(e)(2)]. Under prior rules, the maximum penalty was $1,100 per violation. Effective August 1, 2016, the maximum penalty is increased to $1,894 per violation.
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 requirement 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 size of the employer’s business. The 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 [29 C.F.R. §578.4].
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. Under prior rules, the maximum penalty was $11,000 per violation. The new rules increase the maximum penalty to $12,080 per employee subject to a violation.
• 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. Under prior rules, the maximum penalty was $50,000 per employee. The new rules increase the maximum penalty to $54,910.
• 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. Under prior rules, the maximum penalty for repeated or willful violations was $100,000. The new maximum penalty is $109,820.
Again, these are maximum penalties. The actual amount of any penalty will based on the available evidence of the violation or violations and will take into consideration the size of the business of the person charged and the gravity of the violations [29 C.F.R. §579.5].
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