Cost of Violating FLSA, FMLA, Other Laws Just Rose

Author: Marta Moakley, XpertHR Legal Editor

January 27, 2017

The US Department of Labor (DOL) has issued a final rule that increases penalties assessed or enforced in its regulations. The increases apply to any penalties assessed after January 13, 2017, which is the effective date of the rule, for violations that occurred after November 2, 2015.

Under the Inflation Adjustment Act, the DOL must adjust its civil monetary penalty levels for inflation no later than January 15 of each year. The affected regulations are enforced by several agencies within DOL, including the:

  • Office of Workers' Compensation Programs;
  • Wage and Hour Division (WHD);
  • Occupational Safety and Health Administration (OSHA);
  • Employee Benefits Security Administration; and
  • Mine Safety and Health Administration.

The WHD enforces penalties under the following employment laws:

  • Fair Labor Standards Act;
  • Family and Medical Leave Act;
  • Migrant and Seasonal Agricultural Worker Protection Act;
  • The Immigration and Nationality Act (INA) (regarding the H-2A, D-1 and H-1B visa programs); and
  • Employee Polygraph Protection Act (EPPA).

Regarding wage and hour penalties, the DOL was originally authorized to impose a monetary penalty of up to $1,100 for each repeated or willful violation; the penalty is now $1,925. Child labor violations that result in a minor's injury or death are subject to a penalty of up to $55,808. A repeated or willful violation that causes serious injury or death could result in a penalty of $111,616.

Regarding penalties under the Employee Retirement Income Security Act (ERISA), the penalty for failure or refusal to properly file an annual report rose to $2,097 per day. For an uncorrected violation that is not de minimis, the penalty rose to $16,742. A number of other penalties may be assessed relating to reporting and disclosure compliance obligations.

Penalties for safety and health violations continue to climb. The penalty for a serious violation under the Occupational Safety and Health Act rose to $12,675. In addition, an OSHA posting violation could result in a maximum penalty of $12,675; the same amount may be assessed for a failure to abate.

Penalties under the DOL's enforcement of INA provisions rose as well, including a maximum penalty of $51,588 regarding a willful violation of H-1B program that results in the displacement of a US worker.