July 10, 2013

Dept. of Labor Contest: Develop an App to Harass and Embarrass Employers

A friend of mine and I separately received an email from the Department of Labor yesterday which made both of us to ask the same question: Why would anyone want to start up or expand a business and hire employees in the current hostile atmosphere?

DOL’s release, positioned as part of its celebration of the 75th anniversary of the Fair Labor Standards Act, announces a contest which it calls the “DOL Fair Labor Data Challenge.” It is asking developers to “create an innovative tool that lets an informed consumer find out if a business is obeying the law when it comes to paying workers properly.” To those uninitiated in the ways of the government bureaucracy, this exercise might not seem particularly troubling. Those who believe that are wrong. Meanwhile, I can assure you that there are many in the press who know exactly what’s going on here and believe it’s a good idea — but won’t report it, because they’d rather the public not know about it.

The contest’s goal is as follows:

Your challenge is to create an application that integrates publicly-available enforcement data from the Wage and Hour Division and the Occupational Safety and Health Administration for various industries with other publicly available consumer friendly data sets and consumer ratings web sites like Yelp and mapping tools like Google Maps. The application will help consumers locate such establishments and view their federal enforcement and violations history as well as read consumer reviews to help them decide where to spend their hard-earned wages. Not only can this compliance information be useful to consumers, it can likewise factor into employees’ decisions while job hunting.

Allow me to enlighten readers who believe that the whole thing is a noble exercise in improving worker protection.

Especially in an administration such as the one currently implanted in Washington, OSHA inspectors and FLSA auditors have two overriding goals: to find as many violations as possible, no matter how trivial or inconsequential they are to safety and fair employee compensation, and to propose the highest possible fines, no matter how excessive. In the current regulatory atmosphere, that’s how you advance your career and keep your job secure.

These violations and fines serve as the starting point for “negotiations.” That word is in quotes because “negotiations” between a virtually all-powerful government and a business by definition are not between equal parties and obviously lack a level playing field.

In an ideal world, businesses facing a laundry list of violations and fines would aggressively fight every single wrongful item. But they don’t have unlimited time or money to do so. They very often end up conceding just a few violations, pay a far lower fine than the one originally proposed, move on, and hope against hope that they’ll be left alone.

The DOL wants to flag as “violators” not only those who deserved punishment, but also those who only settled under obvious duress after the fact by flagging them on an interactive map accessible from computers, smartphones and tablets. This is outrageous.

DOL has already tried to do this with a data enforcement map. Anyone who cares enough to identify businesses they might want to consider avoiding based on their record of “violations” can go here and get such information.

Apparently the map isn’t getting the use DOL wants, which is why it wants the multi-platform app.

To maximize the exposure, DOL has included the following items as elements of the app’s minimum requirements:

“The app will provide users with WHD and OSHA enforcement data and compliance history about the stores, restaurants and hotels/motels in the vicinity of the individual’s GPS location.”

“The app will allow users to enter an address and provide users with WHD and OSHA enforcement data and compliance history about various identified industries in the vicinity of the entered address.”

“The app will display violation and non-violation data.”

The final item appears to mean that even if you were clean, the fact that you were visited will put you on the map. Sadly, assuming the app gets users, which it hopefully won’t, many users will see a company name and avoid it in their job search or purchase decisions without further investigation. It’s enough to make you wonder if including “non-violation data” is a form of revenge DOL will visit on employers who somehow avoided its sanctions.

The whole idea of the original map and the contest’s app is really a form of eternal double jeopardy. Once a business has conceded to violations and paid its fines, that should be the end of it unless there is new evidence of legitimate wrongdoing. (In fact, I wouldn’t be surprised if the government often concedes as part of its “negotiations” that its target is now in compliance.)

Hopefully, the “prize” being offered the contest’s winner will be insufficiently motivating:

Expenses Paid Trip to Award Ceremony in Washington, D.C., Meet & Greet with Federal Chief Technology Officer, U.S. Secretary of Labor, U.S. Chief Innovation Officer, meet with top private sector entrepreneurs and innovators.

… The current prize is subject to change at any time.

What’s the second prize — two trips?

Congress ought to look into make this contest subject to permanent change, as in termination — right now. Perhaps it will be if this exercise in heavy-handedness gets sufficient congressional and New Media exposure.

Sadly, I believe that most of the establishment press won’t lift a finger except to cheer DOL on or defend it if there is visible pushback.

Cross-posted at NewsBusters.org.

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2 Comments

  1. Let me identify myself, I am Tom’s friend who regularly receives emails from the Department of Labor merely to keep up with their activities. Why? Because I spent 16 years of my life in litigation with the DoL as they destroyed my consulting engineering firm with 55 employees due to what I was told was a “new unpublished interpretation of a 48 year old law and corresponding regulations.” The suit was filed in January 1989 and continued in the Courts until 2004 and finally ceased when I had a meeting with the DoL in Washington in 2005.

    The allegation was that I violated the W&HD regulations with a flextime policy I adopted for the benefit of my employees. When the lawsuit was filed in 1989, my lowest paid employee was $42,000 a year with a benefit package that included 100% company paid health, dental, pharmaceutical, and life insurance policy for my employee, spouse, and children. There were 14 paid holidays per year, two weeks of vacation starting in year one, a 401k Plan, and a flextime plan which afforded each employee the opportunity to choose which 80 hours he/she wanted to work in the 120 hours our offices were opened in a two week pay period. The DoL pleaded with the Courts that I was abusing my employees.

    The part that Tom was not able to capture in his post is that the DoL needs merely to make an allegation and the full burden of proof is on the employer. Now Civil Law does not deal with guilt or innocence, those are criminal terms, BUT if the full burden is on the employer than in essence the employer is guilty until he/she proves their innocence.

    One other significant point is that Labor Law goes around the wall of protection afforded by filing as a Corporation. Labor Law attacks the owner as well as the corporation.

    I struggled for years trying to understand why the DoL would take such actions and it finally dawned on me. They have the same innate need that all of us have – job security, and we achieve some degree of security by doing our job. Well, what is their job? Simply put they write regulations and litigate. If they are not doing either then they are not doing their job. So the “app” they are looking to create and disseminate truly is a “fishing expedition.” Which leaves me to wonder, why anyone would start a small business today and make the commitment to hire employees when competition is keen enough without the meddling of our Uncle Sam which seems determined to get involved?

    If you have an interest to learn more; and find out who is really running our government, and our lives… and who is letting them, then send your name and mailing address to me at williampierce at yahoo dot com and I will be happy to send a complimentary copy of the book that chronicles my family’s journey to hell and back.

    Comment by Bill Pierce — July 11, 2013 @ 12:31 am

  2. Thanks, Bill.

    Comment by Tom — July 11, 2013 @ 10:27 am

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