FAIR LABOR STANDARDS

ACT

Department of Labor Needs 

a More Systematic 

Approach to Developing Its 

Guidance

Statement of Andrew Sherrill, Director, Education, 

Workforce, and Income Security

Testimony 

Before the Subcommittee on Workforce 

Protections, Committee on Education 

and the Workforce, U.S. House of 

Representatives

For Release on Delivery 

Expected at 10 a.m. ET

Wednesday July 23, 2014

GAO-14-629T

United States Government Accountability Office
United States Government Accountability Office

Highlights of GAO-14-629T, a testimony 

before the Subcommittee on Workforce 

Protections, Committee on Education and the 

Workforce, House of Representatives

July 23, 2014

FAIR LABOR STANDARDS ACT

Department of Labor Needs a More Systematic 

Approach to Developing Its Guidance

Why GAO Did This Study

The FLSA sets federal minimum wage 

and overtime pay requirements 

applicable to millions of U.S. workers 

and allows workers to sue employers 

for violating these requirements. 

Questions have been raised about the 

effect of FLSA lawsuits on employers 

and workers and about WHD's 

enforcement and compliance 

assistance efforts as the number of 

lawsuits has increased. 

This statement examines what is 

known about the number of FLSA 

lawsuits filed and how WHD plans its 

FLSA enforcement and compliance 

assistance efforts. It is based on the 

results of a previous GAO report 

issued in December 2013. In 

conducting the earlier work, GAO 

analyzed federal district court data 

from fiscal years 1991 to 2012 and 

reviewed selected documents from a 

representative sample of lawsuits filed 

in federal district court in fiscal year 

2012. GAO also reviewed DOL’s 

planning and performance documents, 

interviewed DOL officials, as well as 

stakeholders, including federal judges, 

plaintiff and defense attorneys who 

specialize in FLSA cases, officials from 

organizations representing workers 

and employers, and academics.

What GAO Recommends

In its December 2013 report, GAO 

recommended that the Secretary of 

Labor direct the WHD Administrator to 

develop a systematic approach for 

identifying and considering areas of 

confusion that contribute to possible 

FLSA violations to help inform the 

development and assessment of its 

guidance. WHD agreed with the 

recommendation and described its 

plans to address it.

What GAO Found

Substantial increases occurred over the last decade in the number of civil 

lawsuits filed in federal district court alleging violations of the Fair Labor 

Standards Act of 1938, as amended (FLSA). Federal courts in most states 

experienced increases in the number of FLSA lawsuits filed, but large increases 

were concentrated in a few states, including Florida and New York. Many factors

may contribute to this general trend; however, the factor cited most often by 

stakeholders GAO interviewed—including attorneys and judges—was attorneys’ 

increased willingness to take on such cases. In fiscal year 2012, an estimated 97 

percent of FLSA lawsuits were filed against private sector employers, often from 

the accommodations and food services industry, and 95 percent of the lawsuits 

filed included allegations of overtime violations.

FLSA Lawsuits Filed in Federal District Court in Florida, New York, and Other States, Fiscal 

Years 1991-2012

The Department of Labor’s Wage and Hour Division (WHD) has an annual 

process for planning how it will target its enforcement and compliance assistance 

resources to help prevent and identify potential FLSA violations. In planning its 

enforcement efforts, WHD targets industries that, according to its recent 

enforcement data, have a higher likelihood of FLSA violations. WHD, however,

does not have a systematic approach that includes analyzing relevant data, such 

as the number of requests for assistance it receives from employers and 

workers, to develop its guidance, as recommended by best practices previously 

identified by GAO. In addition, WHD does not have a routine, data-based 

process for assessing the adequacy of its guidance. For example, WHD does not 

analyze trends in the types of FLSA-related questions it receives from employers 

or workers. According to plaintiff and defense attorneys GAO interviewed, more 

FLSA guidance from WHD would be helpful, such as guidance on how to 

determine whether certain types of workers are exempt from the overtime pay 

and other requirements of the FLSA. 

View GAO-14-629T. For more information, 

contact Andrew Sherrill at (202) 512-7215 or 

sherrilla@gao.gov
 

Page 1 GAO-14-629T 

Chairman Walberg, Ranking Member Courtney, and Members of the 

Subcommittee:

I am pleased to be here today to discuss our work on the recent increase 

in the number of lawsuits filed by individuals or groups alleging violations 

of the Fair Labor Standards Act (FLSA).1

WHD enforces the FLSA by conducting investigations, assessing 

penalties, supervising payment of back wages, and bringing suit in court 

on behalf of employees. In addition to responding to complaints of alleged 

FLSA violations it receives from workers or their representatives, WHD 

also initiates enforcement actions in an effort to target employers likely to 

violate the FLSA and where workers may be particularly vulnerable. 

However, WHD cannot investigate all of the thousands of complaints it 

receives each year because of its limited capacity. Therefore, the agency 

informs workers whose complaints of FLSA violations are not investigated 

or otherwise resolved by WHD of their right to file a lawsuit. Workers filing 

an FLSA lawsuit may file in one of the 94 federal district courts, which are 

divided into 12 regional circuits across the country.

The FLSA sets minimum wage 

and overtime pay standards applicable to most U.S. workers. The 

Department of Labor’s (DOL) Wage and Hour Division (WHD) is 

responsible for ensuring that employers comply with the FLSA, and 

workers may also file private lawsuits to recover wages they claim they 

are owed because of a violation of the act, such as an employer’s failure 

to pay overtime compensation to workers who are entitled to it. In recent 

years, the number of FLSA lawsuits has increased and questions have 

been raised about the effect of FLSA litigation on employers and workers 

and about WHD’s enforcement and compliance assistance efforts.

2

WHD encourages compliance with the FLSA by providing training for 

employers and workers and creating online tools and fact sheets that 

explain the requirements of the law and related regulations, among other 

efforts. The agency refers to these efforts collectively as compliance 

assistance. One form of FLSA compliance assistance WHD provides is 

 

1 Fair Labor Standards Act of 1938, ch. 676, 52 Stat. 1060 (codified as amended at 29 

U.S.C. §§ 201-19). 

2 Workers may also file FLSA lawsuits in state court. In addition, state laws may establish 

higher minimum wage, lower maximum hours, or higher child labor standards than those 

established by the FLSA. Lawsuits filed in federal court with FLSA claims may include 

related state law claims. 
 

Page 2 GAO-14-629T 

written interpretive guidance that attempts to clarify the agency’s 

interpretation of a statutory or regulatory provision. WHD disseminates 

this guidance to those who request it—such as employers and workers—

and posts it on the WHD website for public use. WHD’s interpretive 

guidance includes opinion letters which apply to a specific situation. In 

2010, WHD stopped issuing opinion letters and indicated that it would 

instead provide administrator interpretations, which are more broadly 

applicable.

My statement today examines what is known about the number of FLSA 

lawsuits filed and how WHD plans its enforcement and compliance 

assistance efforts.3 The statement is based on a report we issued in 

December 2013.4 To conduct our prior work, we analyzed federal district 

court data compiled by the Federal Judicial Center—the research and 

education agency of the federal judicial system— from fiscal years 1991 

to 2012. To assess the reliability of the data we obtained from the Federal 

Judicial Center, we reviewed documentation related to the collection and 

processing of the data, interviewed officials at the Administrative Office of 

the U.S. Courts and the Federal Judicial Center, and performed electronic 

testing to identify any missing data, outliers, and obvious errors. We 

determined that the data included in our report were sufficiently reliable 

for our purposes. In addition, we reviewed selected documents from a 

nationally representative sample of 97 FLSA lawsuits filed in federal 

district court in fiscal year 2012.5

 

3 For the purposes of this testimony, unless otherwise specified, the term “FLSA lawsuits” 

refers to lawsuits filed in federal district court under the FLSA.

All estimates from our sample had a 95 

percent confidence interval of within plus or minus 10 percentage points. 

We also reviewed DOL’s planning and performance documents and 

interviewed DOL officials, as well as stakeholders, including federal 

judges, plaintiff and defense attorneys who specialize in FLSA cases, 

officials from organizations representing workers and employers, and 

academics about FLSA litigation trends and WHD’s enforcement and 

4 GAO, Fair Labor Standards Act: The Department of Labor Should Adopt a More 

Systematic Approach to Developing Its Guidance, GAO-14-69 (Washington, D.C.: Dec. 

18, 2013). 

5 For this analysis, we reviewed only the initial complaint from the lawsuits in our sample. 

A “complaint” is the legal term for the document the plaintiff files with the court to initiate a 

civil lawsuit. Our review did not include any subsequent documents filed, and therefore the 

information we collected was limited to the information provided by the plaintiff at the time 

the lawsuit was filed. 
 

Page 3 GAO-14-629T 

compliance assistance efforts. Further details on our scope and 

methodology are available in the previously published report.

We conducted the work on which this statement is based in accordance 

with generally accepted government auditing standards. Those standards 

require that we plan and perform the audit to obtain sufficient, appropriate 

evidence to provide a reasonable basis for our findings and conclusions 

based on our audit objectives. We believe the evidence obtained provides 

a reasonable basis for our findings and conclusions based on our audit 

objectives.

Over the past two decades—from 1991 through 2012—there was a 

substantial increase in the number of FLSA lawsuits filed, with most of the 

increase occurring in the period from fiscal year 2001 through 2012.6 As 

shown in figure 1, in 1991, 1,327 lawsuits were filed; in 2012, that number 

had increased over 500 percent to 8,148.

 

6 The fact that a lawsuit was filed does not provide any information about how it was 

ultimately resolved. A case may be resolved in a variety of ways, such as settlement out of 

court, dismissal, or a judgment in favor of the plaintiff or defendant.

FLSA Lawsuits Have 

Increased 

Substantially over the 

Last Decade and 

Most FLSA Lawsuits 

Filed in Fiscal Year 

2012 Alleged 

Overtime Pay 

Violations

FLSA Lawsuits Increased 

Substantially Over the 

Last Decade, and Most 

Were Filed in a Few 

States
 

Page 4 GAO-14-629T 

Figure 1: Number of FLSA Lawsuits Filed in Federal District Court, Fiscal Years 1991-2012

Note: An FLSA lawsuit may be filed on behalf of an individual worker or multiple workers. Data on the 

number of workers involved in each lawsuit were not readily available.

FLSA lawsuits can be filed by DOL on behalf of employees or by private 

individuals. Private FLSA lawsuits can either be filed by individuals or on 

behalf of a group of individuals in a type of lawsuit known as a “collective 

action”.7

 

7 The FLSA provides that an action may be brought “by any one or more employees for 

and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. 

§ 216(b). Collective actions under the FLSA and some other laws operate on an “opt-in” 

basis, meaning that workers must affirmatively consent in writing to participate as 

plaintiffs. In contrast, litigation under other laws may generally be brought as a class 

action. Class actions operate on an “opt-out” basis, whereby anyone who is part of a 

court-certified class is included as a plaintiff unless they actively choose not to be. Unlike 

the members of a class action, a potential plaintiff who does not “opt-in” to an FLSA 

collective action is not bound by the court’s judgment in the case. In some cases, a federal 

court may hear both a collective action under the FLSA and a class action under state law. 

The court will generally certify whether a lawsuit meets the 

requirements to proceed as a collective action. The court may deny 

certification to a proposed collective action or decertify an existing 

collective action if the court determines that the plaintiffs are not “similarly 

situated” with respect to the factual and legal issues to be decided. In 
 

Page 5 GAO-14-629T 

such cases, the court may permit the members to individually file private 

FLSA lawsuits.

Collective actions can serve to reduce the burden on courts and protect 

plaintiffs by reducing costs for individuals and incentivizing attorneys to 

represent workers in pursuit of claims under the law.8

Figure 2: FLSA Lawsuits Filed in Federal District Court in Fiscal Year 2012, by Type

They may also 

protect employers from facing the burden of many individual lawsuits; 

however, they can also be costly to employers because they may result in 

large amounts of damages. For fiscal year 2012, we found that an 

estimated 58 percent of the FLSA lawsuits filed in federal district court 

were filed individually, and 40 percent were filed as collective actions. An 

estimated 16 percent of the FLSA lawsuits filed in fiscal year 2012 (about 

a quarter of all individually-filed lawsuits), however, were originally part of 

a collective action that was decertified (see fig. 2). 

 

8 According to the Supreme Court in Hoffmann-La Roche, Inc. v. Sperling, a collective 

action allows plaintiffs “the advantage of lower individual costs to vindicate rights by the 

pooling of resources. The judicial system benefits by efficient resolution in one proceeding 

of common issues of law and fact arising from the same ... activity.” 493 U.S. 165, 170 

(1989). 
 

Page 6 GAO-14-629T 

Federal courts in most states experienced increases in the number of 

FLSA lawsuits filed between 1991 and 2012, but large increases were 

concentrated in a few states, including Florida, New York, and Alabama. 

Of all FLSA lawsuits filed since 2001, more than half were filed in these 

three states, and in 2012, about 43 percent of all FLSA lawsuits were filed 

in Florida (33 percent) or New York (10 percent). In both Florida and New 

York, growth in the number of FLSA lawsuits filed was generally steady, 

while changes in Alabama involved sharp increases in fiscal years 2007 

and 2012 with far fewer lawsuits filed in other years (see fig. 3). Each 

spike in Alabama coincided with the decertification of at least one large 

collective action, which likely resulted in multiple individual lawsuits. For 

example, in fiscal year 2007, 2,496 FLSA lawsuits (about one-third of all 

FLSA lawsuits) were filed in Alabama, up from 48 FLSA lawsuits filed in 

Alabama in fiscal year 2006. In August 2006, a federal district court in 

Alabama decertified a collective action filed by managers of Dollar 

General stores. In its motion to decertify, the defendant estimated the 

collective to contain approximately 2,470 plaintiffs.9

 

9 Order on Motion to Decertify, Brown v. Dolgencorp, Inc., No. 02-673 (N.D. Ala. Aug. 7, 

2006). Several stakeholders we interviewed cited decertifications of collective actions as a 

possible cause of spikes in the number of FLSA lawsuits filed. 
 

Page 7 GAO-14-629T 

Figure 3: Percentage of FLSA Lawsuits Filed in Federal District Court in Florida, New York, and Alabama Compared to FLSA 

Lawsuits Filed in All Other States, Fiscal Years 1991-2012

Note: The large increase in FLSA lawsuits in all other states in fiscal year 2002 can be attributed to a 

spike in FLSA lawsuits filed in Mississippi in that year, coincident with an effort by a group of 

attorneys to bring FLSA lawsuits on behalf of certain school workers in Mississippi at that time.
 

Page 8 GAO-14-629T 

In fiscal year 2012, an estimated 97 percent of FLSA lawsuits were filed 

against private sector employers, and an estimated 57 percent of FLSA 

lawsuits were filed against employers in four industry areas: 

accommodations and food services; manufacturing; construction; and 

“other services”, which includes services such as laundry services, 

domestic work, and nail salons.10 Almost one-quarter of all FLSA lawsuits 

filed in fiscal year 2012 (an estimated 23 percent) were filed by workers in 

the accommodations and food service industry, which includes hotels, 

restaurants, and bars. At the same time, almost 20 percent of FLSA 

lawsuits filed in fiscal year 2012 were filed by workers in the 

manufacturing industry. In our sample, most of the lawsuits involving the 

manufacturing industry were filed by workers in the automobile 

manufacturing industry in Alabama, and most were individual lawsuits 

filed by workers who were originally part of one of two collective actions 

that had been decertified.11

FLSA lawsuits filed in fiscal year 2012 included a variety of different types 

of alleged FLSA violations and many included allegations of more than 

one type of violation. An estimated 95 percent of the FLSA lawsuits filed 

in fiscal year 2012 alleged violations of the FLSA’s overtime provision, 

which requires certain types of workers to be paid at one and a half times 

their regular rate for any hours worked over 40 during a workweek.12

Almost one-third of the lawsuits contained allegations that the worker or 

workers were not paid the federal minimum wage.13

 

10 We used the North American Industry Classification System (NAICS) when determining 

the industry of workers filing lawsuits. For 14 percent of the FLSA lawsuits in our sample, 

we were unable to identify the industry in which the workers were employed because 

information about the industry was not included in the complaint we reviewed from the 

lawsuit. 

We also identified 

more specific allegations about how workers claimed their employers 

11 Our sample included individual lawsuits originating from one of two collective actions 

initially filed in Alabama against an automobile manufacturer in 2008. In fiscal year 2012, 

these collective actions were decertified and a number of individual lawsuits were 

subsequently filed. One of these collective actions also named two staffing agencies as 

co-defendants. 

12 See 29 U.S.C. § 207. The FLSA exempts certain types of workers from these 

requirements, including outside salespersons; workers in bona fide executive, 

administrative, or professional positions; and workers in certain computer-related 

occupations. 29 U.S.C. § 213(a)(1) and (17).

13 See 29 U.S.C. § 206.

FLSA Lawsuits Filed in 

2012 Were Concentrated 

in a Few Industries and 

Most Alleged Overtime 

Violations
 

Page 9 GAO-14-629T 

violated the FLSA. For example, nearly 30 percent of the lawsuits 

contained allegations that workers were required to work “off-the-clock” 

so that they would not need to be paid for that time.14

 

14 For the purposes of our review, we defined an “off-the-clock” allegation as a claim that 

an employer did not pay workers for all of the hours they worked within a day. Examples 

include claims that workers were not credited or paid for time worked outside their 

scheduled work hours, such as the hours when they were donning protective gear or 

booting up their computers before starting work. Requiring an employee to work off-theclock can result in both overtime and minimum wage violations. An overtime violation 

could occur if the hours worked off-the-clock result in more than 40 hours worked during 

the workweek. A minimum wage violation could occur if a worker’s wage is at or close to 

the minimum wage, and the extra hours worked without pay result in his or her average 

hourly wage falling below the minimum wage. 

In addition, the 

majority of lawsuits contained other FLSA allegations, such as that the 

employer failed to keep proper records of hours worked by the 

employees, failed to post or provide information about the FLSA, as 

required, or violated requirements pertaining to tipped workers such as 

restaurant wait staff (see fig. 4).
 

Page 10 GAO-14-629T 

Figure 4: Estimated Percentage of FLSA Lawsuits Filed in Federal District Court in Fiscal Year 2012, by Type of Allegation

Note: Percentages do not add to 100 because FLSA lawsuits may contain multiple allegations. Any 

allegations not specifically mentioned in the lawsuit complaint were not counted. All estimates have a 

95 percent confidence interval of within plus or minus 10 percentage points.

a This figure also includes lawsuits filed by DOL. An FLSA lawsuit filed by DOL may include certain 

other allegations, such as those related to child labor violations; however, the DOL-initiated lawsuits 

in our sample did not include such additional allegations.

b

Other FLSA allegations include recordkeeping violations, failure to post FLSA-related information as 

required, and violations related to tipped workers, among others.

While it was not possible to determine the exact cause of the increase in 

the number of FLSA lawsuits filed in recent years, stakeholders we 

interviewed cited several potential contributing factors:

• Increased awareness and activity by plaintiffs’ attorneys.

Stakeholders we interviewed—including federal judges, officials with 

WHD, and attorneys—most frequently cited increased awareness 

about FLSA cases and activity on the part of plaintiffs’ attorneys as a 

significant contributing factor. Many stakeholders, including two 

plaintiffs’ attorneys, told us that financial incentives, combined with the 

Stakeholders Cited 

Several Reasons for the 

Rise in FLSA Litigation
 

Page 11 GAO-14-629T 

fairly straightforward nature of many FLSA cases, made attorneys 

receptive to taking these cases.15

• Evolving case law. Several stakeholders we interviewed told us that 

evolving case law may have contributed to the increased awareness 

and activity on the part of plaintiffs’ attorneys. For example, they said 

the 1989 Supreme Court decision Hoffmann–La Roche, Inc. v. 

Sperling made it easier for plaintiffs’ attorneys to identify potential 

plaintiffs and reduced the work necessary to form collectives. 

Historically, according to several stakeholders, the requirement that 

plaintiffs must “opt in” to a collective action had created some 

challenges to forming collectives because the plaintiffs’ attorneys had 

to identify potential plaintiffs and contact them to get them to join the 

collective. In this case, the Supreme Court held that federal courts 

have discretion to facilitate notice to potential plaintiffs of ongoing 

collective actions.

In Florida, for example, where 

nearly 30 percent of all FLSA lawsuits were filed from 1991 to 2012, 

several stakeholders told us that plaintiffs’ attorneys advertise for 

wage and hour cases via billboards, radio, foreign language press, 

and other methods.

16

• Economic conditions. According to some stakeholders we 

interviewed, economic conditions, such as the recent recession, may 

have played a role in the increase in FLSA litigation. Workers who 

have been laid off face less risk when filing FLSA lawsuits against 

former employers than workers who are still employed and may fear 

retaliation as a result of filing lawsuits.17

• State wage and hour laws. Many stakeholders also told us that the 

prevalence of FLSA litigation by state is influenced by the variety of 

state wage and hour laws. For example, while the federal statute of 

In addition, some 

stakeholders said that, during difficult economic times, employers may 

be more likely to violate FLSA requirements in an effort to reduce 

costs, possibly resulting in more FLSA litigation.

 

15 The FLSA requires the court to award a reasonable attorney’s fee to a prevailing 

plaintiff, to be paid by the defendant. 29 U.S.C. § 216(b). Several stakeholders said 

plaintiffs’ attorneys in FLSA cases typically work on a contingent basis, meaning that, if 

the case settles, they receive a percentage of the settlement as a fee. However, if the 

plaintiff does not receive a settlement or win the case, the attorney is not paid for his or 

her services.

16 Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165 (1989). 

17 An estimated 14 percent of FLSA lawsuits filed in federal district court in fiscal year 

2012 included an allegation of retaliation.
 

Page 12 GAO-14-629T 

limitations for filing an FLSA claim is 2 years (3 years if the violation is 

“willful”), New York state law provides a 6-year statute of limitations 

for filing state wage and hour lawsuits. A longer statute of limitations 

may increase potential financial damages in such cases because 

more pay periods are involved and because more workers may be 

involved. Adding a New York state wage and hour claim to an FLSA 

lawsuit in federal court could expand the potential damages, which, 

according to several stakeholders, may influence decisions about 

where and whether to file a lawsuit. In addition, according to multiple 

stakeholders we interviewed, because Florida lacks a state overtime 

law, those who wish to file a lawsuit seeking overtime compensation 

generally must do so under the FLSA.

• Ambiguity in applying the law and regulations. Ambiguity in 

applying the FLSA statute or regulations—particularly the exemption 

for executive, administrative, and professional workers—was cited as 

a factor by a number of stakeholders. In 2004, DOL issued a final rule 

updating and revising its regulations in an attempt to clarify this 

exemption and provided guidance about the changes, but a few 

stakeholders told us there is still significant confusion among 

employers about which workers should be classified as exempt under 

these categories.18

• Industry trends. As mentioned previously, about one-quarter of 

FLSA lawsuits filed in fiscal year 2012 were filed by workers in the 

accommodations and food service industry. Nationally, service jobs, 

including those in the leisure and hospitality industry, increased from 

2000 to 2010, while most other industries lost jobs during that 

period.19

 

18 Defining and Delimiting the Exemptions for Executive, Administrative, Professional, 

Outside Sales and Computer Employees, 69 Fed. Reg. 22,122 (Apr. 23, 2004) (codified at 

29 C.F.R. pt. 541). 

Federal judges in New York and Florida attributed some of 

the concentration of such litigation in their districts to the large number 

of restaurants and other service industry jobs in which wage and hour 

violations are more common than in some other industries. An 

academic who focuses on labor and employment relations told us that 

changes in the management structure in the retail and restaurant 

industry may have contributed to the rise in FLSA lawsuits. For 

example, frontline managers who were once exempt have become 

nonexempt as their nonmanagerial duties have increased as a portion 

of their overall duties.

19 Department of Labor, Bureau of Labor Statistics, Monthly Labor Review, volume 135, 

number 1 (Washington, D.C.: January 2012), p. 66. 
 

Page 13 GAO-14-629T 

We also reviewed DOL’s annual process for determining how to target its 

enforcement and compliance assistance resources. The agency targets 

industries for enforcement that, according to its recent enforcement data, 

have a higher likelihood of FLSA violations, along with other factors. In 

addition, according to WHD internal guidance, the agency’s annual 

enforcement plans should contain strategies to engage related 

stakeholders in preventing such violations. For example, if a WHD office 

plans to investigate restaurants to identify potential violations of the 

FLSA, it should also develop strategies to engage restaurant trade 

associations about FLSA-related issues so that these stakeholders can 

help bring about compliance in the industry.

However, DOL does not compile and analyze relevant data, such as 

information on the subjects or the number of requests for assistance it 

receives from employers and workers, to help determine what additional 

or revised guidance employers may need to help them comply with the 

FLSA.20

Because of these issues, we recommended that WHD develop a 

systematic approach for identifying areas of confusion about the 

requirements of the FLSA that contribute to possible violations and 

improving the guidance it provides to employers and workers in those 

areas. This approach could include compiling and analyzing data on 

requests for guidance on issues related to the FLSA, and gathering and 

using input from FLSA stakeholders or other users of existing guidance 

through an advisory panel or other means.

In developing its guidance on the FLSA, WHD does not use a 

systematic approach that includes analyzing this type of data. In addition, 

WHD does not have a routine, data-based process for assessing the 

adequacy of its guidance. For example, WHD does not analyze trends in 

the types of FLSA-related questions it receives. This type of information 

could be used to develop new guidance or improve the guidance WHD 

provides to employers and workers on the requirements of the FLSA.

 

20 According to federal standards for internal control, program managers need operational 

data to determine whether they are meeting their agencies’ strategic and annual 

performance plans as well as their goals for effective and efficient use of resources. See 

GAO, Standards for Internal Control in the Federal Government, GAO/AIMD-00-21.3.1

(Washington, D.C.: November 1999). In documenting best practices about planning and 

performance management, we have suggested that agencies involve regulated entities in 

the prevention aspect of performance. See GAO, Managing for Results: Strengthening 

Regulatory Agencies’ Performance Management Practices, GAO/GGD-00-10

(Washington, D.C.: Oct. 28, 1999). 

WHD Uses a Databased Approach to 

Target Its FLSA 

Enforcement Efforts 

but Does Not Analyze 

Data on Requests for 

Assistance to 

Improve Its Guidance
 

Page 14 GAO-14-629T 

While improved DOL guidance on the FLSA might not affect the number 

of lawsuits filed, it could increase the efficiency and effectiveness of its 

efforts to help employers voluntarily comply with the FLSA. A clearer 

picture of the needs of employers and workers would allow WHD to more 

efficiently design and target its compliance assistance efforts, which may, 

in turn, result in fewer FLSA violations.

WHD agreed with our recommendation that the agency develop a 

systematic approach for identifying and considering areas of confusion 

that contribute to possible FLSA violations to help inform the development 

and assessment of its guidance. WHD stated that it is in the process of 

developing systems to further analyze trends in communications received 

from stakeholders such as workers and employers and will include 

findings from this analysis as part of its process for developing new or 

revised guidance.

In closing, while there has been a significant increase in FLSA lawsuits 

over the last decade, it is difficult to determine the reasons for the 

increase. It could suggest that FLSA violations have become more 

prevalent, that FLSA violations have been reported and pursued more 

frequently than before, or a combination of the two. It is also difficult to 

determine the effect that the increase in FLSA lawsuits has had on 

employers and their ability to hire workers. However, the ability of workers 

to bring such suits is an integral part of FLSA enforcement because of the 

limits on DOL’s capacity to ensure that all employers are in compliance 

with the FLSA.

Chairman Walberg, Ranking Member Courtney, and members of the 

Committee, this completes my prepared statement. I would be happy to 

respond to any questions you may have.

For further information regarding this statement, please contact Andrew 

Sherrill at (202) 512-7215 or sherrilla@gao.gov. Contact points for our 

Offices of Congressional Relations and Public Affairs may be found on 

the last page of this statement. GAO staff who made key contributions to 

this testimony include Betty Ward-Zukerman (Assistant Director), 

Catherine Roark (Analyst in Charge), David Barish, James Bennett,

Sarah Cornetto, Joel Green, Kathy Leslie, Ying Long, Sheila McCoy, 

Jean McSween, and Amber Yancey-Carroll.

GAO Contact and 

Staff 

Acknowledgments

(131312)
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