An effort by the Biden administration to target a growing number of child labor violations is being weighed down by long-term staffing woes at the agency in charge of investigating such cases.
One current and one former official, as well as a former staffer at the division, say investigators are so mired in a backlog of cases because of a years-long struggle to retain employees that the agency may not have the bandwidth to fully tackle the child labor enforcement initiative announced by the Biden administration in February.
The National Council of Field Labor Locals, which represents 6,500 DOL employees, most recently met with the Wage and Hour Division in March over staffing concerns.
“Given the number of laws that Wage and Hour enforces out there and the number of investigators we have right now,” said Daryl Laurie, president of the NCFLL, “if you divide that among the number of businesses throughout the United States, and do the math on it, they’re stretched pretty thin.”
The Biden DOL has pressed Congress to provide its wage arm with nearly $81 million more in fiscal 2024 than it received in the last appropriations bill, which it says will allow the agency to hire 389 more full-time employees.
“DOL is also calling on Congress for additional funding for DOL agencies to address these important issues and to consider additional protections for workers in all industries including increased penalties and protections against retaliation,” an agency spokesperson said by email.
Attrition at Issue
Labor Department leaders earlier this year tasked the WHD with an ambitious national enforcement initiative and partnered with the Department of Health and Human Services after a series of media reports and federal investigations uncovered egregious child labor violations involving minors working in dangerous conditions.
Since the agency started the effort, the DOL has announced it’s uncovered child labor violations where teens were working more than 40 hours a week and starting shifts after midnight, a 15-year-old suffered spinal injuries after falling off a roof, and a minor suffered deep fryer burns at a fast-food restaurant, among other cases.
When outlining the details of the initiative, DOL leaders emphasized that they would need more cash from Congress to fulfill their plans to crack down on exploitation of minors in the workforce. The DOL said it lost 12% of its staff between 2010 and 2019, due to nearly flat-funding, and that it still hasn’t received enough in recent appropriations bills to “meaningfully rebuild its staff and enforcement capacity.”
Laurie of the NCFLL said the DOL has been making efforts to staff up the WHD despite a promotion and retirement-driven need to backfill roles. “When they’re not backfilled, it means that those that are still doing the investigation work, just have to consume more cases. And consuming more cases means your inventory just keeps going up,” Laurie said.
But even when the agency brings on new staff, new hires don’t get out in the field and take on child labor cases on Day One because of the amount of time it takes to train investigators on the more than a dozen laws the wage division enforces beyond child labor, said one current WHD official who requested to not be identified to discuss agency matters.
Paul DeCamp, a Wage and Hour administrator during the George W. Bush administration, said that bringing on new hires can stymie the agency’s enforcement work for a time.
“In periods when the agency is doing a lot of hiring, that typically drags down the productivity of the agency for a year or two, because you have to devote agency resources to training up the new folks. So you can overwhelm the agency by bringing on too many people,” said DeCamp, now a management-side attorney with Epstein Becker & Green PC.
As part of the new child labor effort, the agency also is integrating new approaches to its enforcement strategies. The current WHD official said child labor cases require more prep work due to their sensitive nature, such as working with community organizations and schools to gather intel about potential victims, and targeting specific geographical areas where the division is identifying a trend in violations.
It’s also up to the division’s regional arms to decide how enforcement initiatives from headquarters will be implemented on the ground.
“Some investigators are going to have a completely full caseload. They’re slammed, they’re already kind of fully allocated to the matters that they’re dealing with and don’t really have the bandwidth to take on significant new work,” DeCamp explained. “So one of the first things that a district will try to do is figure out from just a workload allocation, bandwidth standpoint, who has room to take this on.”
Potentially complicating the WHD’s case for more funding to bolster enforcement is the lack of a confirmed leader atop the DOL to advocate for the department’s work as lawmakers decide how much cash the division should receive in the next fiscal year.
President Joe Biden’s nominee to run the labor department, Julie Su, is currently leading the agency in an acting capacity. But amid a burgeoning opposition campaign to her nomination, Su has been laying low ahead of her confirmation hearing scheduled for April 20.
Congress has also yet to move meaningfully on the budget issue.
Despite the appropriations process beginning for other major agencies, including HHS—which typically has its funding approved in a vehicle that also includes DOL’s—there hasn’t yet been a markup calendared for the DOL’s FY 2024 request. An initial markup was postponed after former Labor Secretary Marty Walsh couldn’t attend before he left the agency.