DOL Offers COVID-19 Guidance on Enforcement Action Damages, Summer Jobs for Teens, and Summer Camp Closures
The Department of Labor issued several field bulletins this month on issues related to COVID-19 and school children, as well as damages in enforcement actions. Field bulletins provide guidance to DOL staff and employers in response to questions that have arisen in field operations.
Practice of Seeking Liquidated Damages in Settlements in Lieu of Litigation – FAB No. 2020-2. In the past, the DOL’s default policy was to seek liquidated damages in addition to back wages from employers when seeking to settle administrative investigations into employee complaints of Fair Labor Standards Act violations. In compliance with President Trump’s executive order to remove regulatory and enforcement barriers to economic prosperity in light of COVID-19, effective July 1, 2020, the DOL will no longer seek liquidated damages in settlement if any of the following circumstances exist:
- there is not clear evidence of bad faith and willfulness;
- the violation(s) were the result of a bona fide dispute of unsettled law under the FLSA;
- the employer has no previous history of violations;
- the matter involves individual coverage only;
- the matter involves complex section 13(a)(1) (white collar) and 13(b)(1) (motor carrier) exemptions; or
- the matter involves State and local government agencies or other non-profits.
When schools that are physically closed are considered in session for purposes of Child Labor – FAB No. 2020-3. Child labor laws regulate the employment of children under 16 years old in agricultural and non-agricultural settings. Specific limitations on when and how many hours may be worked vary depending on whether school is in session. Because many schools are physically closed, the DOL now clarifies that such schools are considered to be in session if they require students to attend through virtual or distance learning. If such attendance is not required, school is not in session, thereby permitting longer hours of work.
In addition, summer sessions typically are considered to be outside of school hours. Due to the pandemic, however, if a school has decided to implement mandatory summer sessions to make up for lost instruction time, such mandatory sessions are viewed as extensions of the regular schedule, and the school would be in session for purposes of the child labor laws.
FFCRA leave based on the closure of summer camps, summer enrichment programs, or other summer programs – FAB No. 2020-4. The Families First Coronavirus Response Act, which applies to most employers with 500 or fewer employees, provides leave to eligible employees for the COVID-19-related closure of a child’s school or place of care. The DOL clarifies that places of care include summer camps and summer enrichment programs. To support a request for leave, the employee must provide an explanation of the reason for leave (i.e. closure of a summer place of care) and a statement that the employee is unable to work because of that reason, along with the name of the child, the name of the summer camp, summer enrichment camp, or other summer program, and a statement that no other suitable person is available to care for the child.
Unlike a regular school, attendance and even enrollment at summer camps and programs was prospective when the closures due to the pandemic began, and therefore, according to the DOL, the requirement to name a specific summer camp or program may be satisfied if the child, for example, applied to or was enrolled in the summer camp or program before it closed, or if the child attended the camp or program in prior summers and was eligible to attend again. There may be other circumstances that show an employee’s child’s enrollment or planned enrollment in a camp or program. A parent’s mere interest in such a camp or program, however, is not enough.