FAIR LABOR 

STANDARDS ACT

The Department of 

Labor Should Adopt a 

More Systematic 

Approach to 

Developing Its 

Guidance

Report to the Chairman, Subcommittee 

on Workforce Protections, Committee 

on Education and the Workforce,

House of Representatives

December 2013

GAO-14-69

United States Government Accountability Office
United States Government Accountability Office

Highlights of GAO-14-69, a report to the 

Chairman, Subcommittee on Workforce 

Protections, Committee on Education and the 

Workforce, House of Representatives

December 2013

FAIR LABOR STANDARDS ACT

The Department of Labor Should Adopt 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 report 

(1) describes what is known about the 

number of FLSA lawsuits filed, and 

(2) examines how WHD plans its FLSA 

enforcement and compliance 

assistance efforts. To address these 

objectives, 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 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 compliance 

assistance efforts.

What GAO Recommends

GAO recommends 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 and the percentage 

of total civil lawsuits filed that were FLSA cases, but large increases were 

concentrated in a few states, including Florida and New York. The number of 

workers involved in FLSA lawsuits is unknown because the courts do not collect 

data on the number of workers represented. Many factors may contribute to this 

general trend; however, the factor cited most often by stakeholders, 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 (DOL) 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, but it does not 

compile and analyze relevant data to help determine what guidance is needed, 

as recommended by best practices previously identified by GAO. In planning its 

enforcement efforts, WHD targets industries it determines have a high likelihood 

of FLSA violations. Although WHD does not analyze data on FLSA lawsuits when 

planning its enforcement efforts, it does use information on its receipt and 

investigation of complaints about possible FLSA violations. In developing its 

guidance on FLSA, WHD considers input from its regional offices, but it does not 

have a systematic approach that includes analyzing relevant data, nor does it 

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. Since 2009, WHD has reduced the number of FLSA-related 

guidance documents it has published. 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 overtime pay and other requirements.

View GAO-14-69. For more information, 

contact Revae Moran at (202) 512-7215 or 

moranr@gao.gov.
Page i GAO-14-69 FLSA Lawsuits

Letter 1

Background 3

FLSA Lawsuits Have Increased Substantially over the Last 

Decade and Share Some Characteristics 6

WHD Plans Its FLSA Enforcement and Compliance Assistance 

Efforts Annually but Does Not Analyze Relevant Data to 

Improve Its Guidance 18

Conclusions 22

Recommendation for Executive Action 23

Agency Comments 23

Appendix I Scope and Methodology 25

Appendix II Comments from the Department of Labor 30

Appendix III GAO Contact and Staff Acknowledgments 32

Figures

Figure 1: Number of FLSA Lawsuits Filed in Federal District Court, 

Fiscal Years 1991-2012 7

Figure 2: 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 9

Figure 3: Estimated Percentage of FLSA Lawsuits Filed in Federal 

District Court in Fiscal Year 2012, by Type of Allegation 15

Figure 4: FLSA Lawsuits Filed in Federal District Court in Fiscal 

Year 2012, by Initiation Type 17

Contents
Page ii GAO-14-69 FLSA Lawsuits

Abbreviations

DOL Department of Labor

FLSA Fair Labor Standards Act of 1938

GPRA Government Performance and Results Act of 1993

NAICS North American Industry Classification System

PACER Public Access to Court Electronic Records

WHD Wage and Hour Division

This is a work of the U.S. government and is not subject to copyright protection in the 

United States. The published product may be reproduced and distributed in its entirety 

without further permission from GAO. However, because this work may contain 

copyrighted images or other material, permission from the copyright holder may be 

necessary if you wish to reproduce this material separately.
Page 1 GAO-14-69 FLSA Lawsuits

441 G St. N.W.

Washington, DC 20548

December 18, 2013

The Honorable Tim Walberg

Chairman

Subcommittee on Workforce Protections

Committee on Education and the Workforce

House of Representatives

Dear Mr. Chairman:

After 75 years, the Fair Labor Standards Act of 1938 (FLSA), as 

amended, remains the primary federal law that sets minimum wage and 

overtime pay standards applicable to most U.S. workers.1 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.2 In July 

2008, we found that WHD did not effectively take advantage of available 

information and tools in planning and conducting its enforcement and 

compliance assistance activities, and we recommended that WHD 

establish, maintain, and report on performance measures for the FLSA.3

More recently, as the number of FLSA lawsuits has increased, questions 

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

and about WHD’s enforcement and compliance assistance efforts.

This report examines the following questions:

1. What is known about the number of FLSA lawsuits filed?

2. How does WHD plan its FLSA enforcement and compliance 

assistance efforts?

 1 Ch. 676, 52 Stat. 1060 (codified as amended at 29 U.S.C. §§ 201-19).

2 WHD administers the FLSA with respect to private employers, state and local 

government employers, and certain federal employers. WHD is also responsible for the 

administration of other federal laws such as the Family and Medical Leave Act of 1993.

3 GAO, Fair Labor Standards Act: Better Use of Available Resources and Consistent 

Reporting Could Improve Compliance, GAO-08-962T (Washington, D.C.: July 15, 2008).
Page 2 GAO-14-69 FLSA Lawsuits

To describe what is known about trends in the number of FLSA lawsuits 

filed, we analyzed data from the federal district courts for fiscal years 

1991 through 2012 provided by the Federal Judicial Center.4 We also 

reviewed complaints from a randomly selected and generalizable sample 

of 97 FLSA lawsuits filed in federal district courts in fiscal year 2012 to 

generate estimates about selected characteristics of such lawsuits.5 We 

did not review FLSA lawsuits filed in state courts or cases from the 

federal appeals courts.6 To describe how WHD plans its FLSA 

enforcement and compliance assistance efforts, we reviewed the 

agency’s planning and performance documents and its published 

guidance on FLSA enforcement and compliance assistance. We also 

compared WHD’s planning process to internal control standards and best 

practices that we have previously identified.7 We did not assess WHD’s 

implementation of its enforcement and compliance assistance plans. To 

inform both objectives, we interviewed DOL officials, attorneys who 

specialize in wage and hour cases, federal judges, officials from 

organizations representing workers and employers, and academics about 

FLSA litigation trends and WHD’s enforcement and compliance 

assistance activities, and reviewed relevant federal laws and regulations.

We conducted this performance audit from November 2012 to December 

2013 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 

 4 The Federal Judicial Center is the research and education agency of the federal judicial 

system. It compiles data from the federal courts via the Administrative Office of the U.S. 

Courts for research purposes.

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

a civil lawsuit. For this analysis, we reviewed only the initial complaint from the lawsuits in 

our sample. 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. All estimates from our sample have a 95 percent confidence interval 

of within plus or minus 10 percentage points.

6 Within this report, unless otherwise specified, “FLSA lawsuits” refers to lawsuits filed in 

federal district court under the FLSA.

7 GAO, Managing for Results: Enhancing Agency Use of Performance Information for 

Management Decision Making, GAO-05-927 (Washington, D.C.: Sept. 9, 2005); 

Standards for Internal Control in The Federal Government, GAO/AIMD-00-21.3

(Washington, D.C.: November 1999); Managing for Results: Strengthening Regulatory 

Agencies’ Performance Management Practices, GAO/GGD-00-10 (Washington, D.C.: Oct. 

28, 1999). 
Page 3 GAO-14-69 FLSA Lawsuits

our findings and conclusions based on our audit objectives. We believe 

that the evidence obtained provides a reasonable basis for our findings 

and conclusions based on our audit objectives. For more information on 

our scope and methodology, see appendix I.

The FLSA requires that workers8 who are covered by the act and not 

specifically exempt from its provisions be paid at least the federal 

minimum wage (currently $7.25 per hour) and 1.5 times their regular rate 

of pay for hours worked over 40 in a workweek.9 The act also regulates 

the employment of youth under the age of 18 and establishes 

recordkeeping requirements for employers, among other provisions. 

There are a number of exceptions to the requirements of the FLSA; for 

example, independent contractors are not covered by the FLSA, and 

certain categories of workers, such as those in bona fide executive, 

administrative, or professional positions, are exempt from the minimum 

wage requirements, overtime requirements, or both. WHD has issued 

regulations implementing the FLSA that further define these exemptions 

and other requirements of the FLSA.10

The mission pursued by DOL through its WHD is to promote and achieve 

compliance with labor standards to protect and enhance the welfare of 

the nation’s workforce. The FLSA authorizes DOL to enforce its 

provisions by, for example, conducting investigations, assessing 

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

on behalf of employees. DOL’s WHD also conducts a range of 

compliance assistance activities to support employers in their efforts to 

understand and meet the requirements of the law. WHD’s enforcement 

and compliance assistance activities are conducted by staff in its 52 

district offices, which are located throughout the country and managed by 

staff in its five regional offices and Washington, D.C. headquarters.

 8 In this report, we use the term “worker” to mean “employee” as defined by the FLSA, 29 

U.S.C. § 203(e).

9 See 29 U.S.C. §§ 206 and 207.

10 See generally 29 C.F.R. pts. 510 – 794.

Background
Page 4 GAO-14-69 FLSA Lawsuits

In response to complaints of alleged FLSA violations it receives from 

workers or their representatives, WHD conducts several types of 

enforcement activities. These range from comprehensive investigations 

covering all laws under the agency’s jurisdiction to conciliations, a quick 

remediation process generally limited to a single alleged FLSA violation 

such as a missed paycheck for a single worker. Before WHD initiates an 

investigation of a complaint, it screens the complaint to determine, among 

other factors, whether the allegations, if true, would violate the law, and to 

ensure the statute of limitations has not expired. If WHD identifies a 

violation through an enforcement activity, but the employer refuses to pay 

the back wages or penalties assessed, DOL’s Office of the Solicitor may 

sue the employer on behalf of the affected workers. In fiscal year 2012, 

WHD conducted investigations or conciliations in response to about 

20,000 FLSA complaints and DOL’s Office of the Solicitor filed about 200 

federal lawsuits to enforce the requirements of the FLSA on behalf of 

workers.11

In addition to responding to complaints, WHD enforces the requirements 

of the FLSA by initiating investigations of employers by targeting 

industries it believes have a high probability of violations but a low 

likelihood that workers will file a complaint. In fiscal year 2012, WHD 

concluded about 7,000 targeted FLSA investigations.

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 

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. 

However, in 2010, WHD stopped issuing opinion letters and indicated that 

it would instead provide administrator interpretations, which are more 

broadly applicable. As a result of the Portal-to-Portal Act of 1947, which 

 11 DOL may seek financial damages on behalf of affected workers, a court order 

prohibiting the employer from continuing to violate the FLSA, or both. The FLSA also 

provides for criminal penalties in certain circumstances.

WHD’s Enforcement of the 

FLSA

WHD’s FLSA Compliance 

Assistance
Page 5 GAO-14-69 FLSA Lawsuits

established a “safe harbor” from liability under the FLSA for employers 

that rely in good faith on a written interpretation from WHD’s 

administrator, certain WHD written guidance could potentially provide a 

“safe harbor” in FLSA litigation.12

The FLSA also grants workers the right to file a private lawsuit to recover 

wages they claim they are owed because of their employer’s violation of 

the act’s minimum wage or overtime pay requirements.13 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.14

FLSA lawsuits may be brought individually or as part of a collective 

action. A collective action is a single lawsuit filed by one or more 

representative workers on behalf of multiple workers who claim that an 

employer violated the FLSA in similar ways.15 The court will generally 

 12 29 U.S.C. § 259. To avoid liability, the employer must prove that the violation was in 

good faith in conformity with and in reliance on any written administrative regulation, order, 

ruling, approval, or interpretation of the Administrator. An employer unable to prove the 

complete defense may still be able to avoid paying certain types of damages if it can 

prove it acted in good faith with reasonable grounds to believe the action was not in 

violation of the FLSA. 29 U.S.C. § 260.

13 29 U.S.C. § 216(b). Workers may also file a lawsuit seeking damages for an employer’s 

retaliation against them under 29 U.S.C. § 215(a)(3).

14 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.

15 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.

Lawsuits Filed by Workers 

Alleging Violations of the 

FLSA
Page 6 GAO-14-69 FLSA Lawsuits

certify whether an action meets the requirements to proceed as a 

collective; in some cases, the court may decertify a collective after it is 

formed if the court subsequently determines that the collective does not 

meet those requirements.16 In such cases, the court may permit the 

members of the decertified collective to individually file private FLSA 

lawsuits.

Over the last two decades, the number of FLSA lawsuits filed nationwide 

in federal district courts has increased substantially, with most of this 

increase occurring in the last decade.17 Since 1991, the number of FLSA 

lawsuits filed has increased by 514 percent, with a total of 8,148 FLSA 

lawsuits filed in fiscal year 2012. Since 2001, when 1,947 FLSA lawsuits 

were filed, the number of FLSA lawsuits has increased sharply (see fig. 

1). Not only has the number of FLSA lawsuits increased, but they also 

constitute a larger proportion of all federal civil lawsuits than they did in 

past years. In 1991, FLSA lawsuits made up less than 1 percent (.6 

percent) of all civil lawsuits, but by 2012, FLSA lawsuits accounted for 

almost 3 percent of all civil lawsuits, an increase of 383 percent.

 16 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. For example, the court may 

determine that the plaintiffs’ jobs or pay structures are sufficiently dissimilar to require 

separate litigation of their claims.

17 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 

Share Some 

Characteristics

FLSA Lawsuits Have 

Multiplied over the Last 

Decade and Most Were 

Filed in a Few States
Page 7 GAO-14-69 FLSA Lawsuits

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.

These increases, however, were not evenly distributed across all states. 

In fact, while federal district courts in most states saw increases in both 

the number of FLSA lawsuits filed and the percentage of all civil lawsuits 

filed that were FLSA lawsuits, increases in a small number of states were 

substantial and contributed significantly to the overall trends. In each of 

three states—Florida, New York, and Alabama—more than 1,000 more 

FLSA lawsuits were filed in fiscal year 2012 than in fiscal year 1991 (see 

fig. 2). Since 2001, more than half of all FLSA lawsuits were accounted 

for by filings in those three states. About 43 percent of FLSA lawsuits filed 

nationwide during this period were filed in either Florida (33 percent) or 

New York (10 percent). At the same time, the percentage of all federal 

civil cases that were FLSA cases in those three states also increased 

significantly. 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. Each spike in Alabama coincided with the decertification of 

at least one large collective action, which likely resulted in multiple 
Page 8 GAO-14-69 FLSA Lawsuits

individual lawsuits.18 From 1991 to 2012, while most states experienced 

increases in the number of FLSA lawsuits filed, the proportion of civil 

lawsuits that were FLSA lawsuits, or both, these trends were not 

universal. In 14 states, the number of FLSA lawsuits filed in 2012 was 

less than or the same as the number of FLSA lawsuits filed in 1991, and 

in 10 states the proportion of civil lawsuits FLSA cases made up was 

smaller in 2012 than in 1991.19

 18 For example, on August 7, 2006, the Chief District Judge for the Northern District of 

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. 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. 

19 We conducted sensitivity analyses using different years for the starting and ending 

points. Changing the start date generally did not have a large effect. Using 2011 rather 

than 2012 as the final year of the timeframe yielded more states that had fewer FLSA 

lawsuits filed and more states that had a decrease in the proportion of civil lawsuits filed 

that were FLSA lawsuits; however, regardless of the final year used, most states showed 

increases in the number of FLSA lawsuits filed and in the proportion of civil lawsuits that 

were FLSA lawsuits.
Page 9 GAO-14-69 FLSA Lawsuits

Figure 2: 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 10 GAO-14-69 FLSA Lawsuits

While many factors have likely contributed to the overall increase in FLSA 

lawsuits and stakeholders we interviewed cited multiple factors, they 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 fairly straightforward nature of many FLSA 

cases, made attorneys receptive to taking these cases.20 In some states, 

specifically Florida, where nearly 30 percent of all FLSA lawsuits were 

filed from 1991 to 2012, several stakeholders, including federal judges, 

WHD officials, and a defense attorney, told us that plaintiffs’ attorneys 

advertise for wage and hour cases via billboards, radio, foreign language 

press, and other methods. Two stakeholders we spoke with also said that 

some plaintiffs’ attorneys, when consulted by potential clients about other 

employment issues, such as wrongful termination, will inquire about 

potential wage and hour claims; a plaintiffs’ attorney we interviewed also 

said that it is generally easier to evaluate the potential merits of wage and 

hour cases than of wrongful termination and employment discrimination 

cases. While a few stakeholders said they did not view increased interest 

among plaintiffs’ attorneys to be a significant factor in the increase in 

FLSA lawsuits, most did, including some plaintiffs’ attorneys. Two 

stakeholders, including an academic and a representative of an 

organization that works on behalf of low wage workers, told us that this 

increased interest was beneficial because it served to counterbalance 

DOL’s limited FLSA enforcement capacity.

In addition, several stakeholders told us that evolving case law may have 

contributed to the increased awareness and activity on the part of 

plaintiffs’ attorneys. In particular, they mentioned the 1989 Supreme Court 

decision Hoffmann–La Roche, Inc. v. Sperling, which held that federal 

courts have discretion to facilitate notice to potential plaintiffs of ongoing 

collective actions.21 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 

 20 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.

21 493 U.S. 165 (1989). 
Page 11 GAO-14-69 FLSA Lawsuits

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

collective. Stakeholders we interviewed said the Hoffmann-La Roche

decision, which made it easier for plaintiffs’ attorneys to identify potential 

plaintiffs, reduced the work necessary to form collectives. In addition, 

according to several stakeholders we interviewed, case law in other areas 

of employment litigation, such as employment discrimination, has 

evolved, making FLSA cases relatively more attractive for plaintiffs’

attorneys who specialize in employment litigation and large multi-plaintiff 

cases. For example, one attorney cited two Supreme Court decisions in 

the late 1990s that made it more difficult for plaintiffs in employmentbased sex discrimination lawsuits to prevail, and led plaintiffs’ attorneys to 

consider other types of employment litigation such as FLSA cases.22

Stakeholders also cited other factors that may have contributed to the 

increase in FLSA litigation over the last two decades; however, these 

factors were endorsed less consistently than the role played by plaintiffs’

attorneys. First, a number of stakeholders said that 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. 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. Moreover, one judge we 

interviewed noted that the recent recession has also been difficult for 

attorneys and may be a factor in the types of lawsuits and clients they 

choose to accept. In addition, 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 these exemptions 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 

 22 See Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. 

v. Ellerth, 524 U.S. 742 (1998). These cases established an affirmative defense for 

employers in certain employment-based sex discrimination cases under Title VII of the 

Civil Rights Act of 1964. The Court held that an employer will not be liable for sexual 

harassment committed by its supervisors if it can prove that (a) the employer exercised 

reasonable care to prevent and correct sexual harassment, and (b) the plaintiff employee 

unreasonably failed to take advantage of any preventive or corrective opportunities 

provided by the employer or otherwise avoid harm.
Page 12 GAO-14-69 FLSA Lawsuits

under these categories.23 Finally, the potentially large number of wage 

and hour violations was given as a possible reason for the increase in 

FLSA litigation. 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 centralization 

in the management structure of businesses in retail, restaurant, and 

similar industries has contributed to FLSA lawsuits in these industries 

because frontline managers who were once exempt have become 

nonexempt as their nonmanagerial duties have increased as a portion of 

their overall duties. Service jobs, including those in the leisure and 

hospitality industry, increased from 2000 to 2010, while most other 

industries lost jobs during that period.24

Many stakeholders also told us that the prevalence of FLSA litigation by 

state is influenced by the variety of state wage and hour laws.25 For 

example, while the federal statute of 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 

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 may 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.

 23 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).

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

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

25 Based on our review of a sample of cases, in fiscal year 2012, almost 30 percent of 

FLSA lawsuits included a state wage and hour claim. Determining the effect, if any, of 

state wage and hour laws on federal FLSA litigation is difficult. State laws may vary and 

many factors influence decisions about where to bring FLSA lawsuits (e.g., in federal or 

state court, and if in state court, which state).
Page 13 GAO-14-69 FLSA Lawsuits

Our review of a representative sample of FLSA lawsuits filed in federal 

district court in fiscal year 2012 showed that approximately half were filed 

against private sector employers in four industries.26 Almost all FLSA 

lawsuits (97 percent) were filed against private sector employers.27 An 

estimated 57 percent of the FLSA lawsuits filed in fiscal year 2012 were 

filed against employers in four broad industry areas: accommodations 

and food services; manufacturing; construction; and “other services”

which, in our sample, included services such as laundry services, 

domestic work, and nail salons.28 Almost one-quarter of all lawsuits filed 

(an estimated 23 percent) were filed by workers in the accommodations 

and food service industry, which includes hotels, restaurants, and bars.29

This concentration of lawsuits is consistent with what several 

stakeholders, including DOL officials, told us about the large number of 

FLSA violations in the restaurant industry. At the same time, almost 20 

percent of FLSA lawsuits were filed by workers in the manufacturing 

industry. In our sample, most of these lawsuits 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.30 It is important to note that, 

 26 We reviewed only the initial complaint from each lawsuit in our sample. Our review did 

not include subsequent documents filed as part of the lawsuit, such as those filed by the 

defendant, amendments to the initial complaint, or final judgments, if any. Therefore, we 

cannot determine whether the allegations in the complaint were substantiated or whether 

the allegations changed during the course of the lawsuit. All estimates from our sample 

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

27 In 2010, 2.1 percent of U.S. jobs were in the federal government and 13.6 percent of 

U.S. jobs were in state or local government, according to the most recently available data 

from the Bureau of Labor Statistics. 

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

the industry of workers filing lawsuits. NAICS is the standard used by federal statistical 

agencies in classifying business establishments for the purpose of collecting, analyzing, 

and publishing statistical data related to the U.S. business economy. See appendix I for 

more information about our classification of lawsuits by industry. 

29 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. 

30 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.

FLSA Lawsuits Filed in 

2012 Were Concentrated 

in a Few Industries and 

Most Alleged Overtime 

Violations
Page 14 GAO-14-69 FLSA Lawsuits

because of the presence of collective actions, the number of lawsuits filed 

against an industry’s employers may understate the number of plaintiffs 

involved in these suits.

FLSA lawsuits filed in fiscal year 2012 included a variety of alleged FLSA 

violations in addition to at least one of the three types of claims—

overtime, minimum wage, and retaliation—that each private FLSA lawsuit 

must at minimum contain.31 Allegations of overtime violations were the 

most common type among those explicitly stated in the documents we 

reviewed (see fig. 3). 32 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.33 Thirty-two percent of the FLSA lawsuits filed in fiscal year 

2012 contained allegations that the worker or workers were not paid the 

federal minimum wage, another main provision of the FLSA, while a 

smaller percentage of lawsuits included allegations that the employer 

unlawfully retaliated against workers (14 percent).34 In addition, the 

majority of lawsuits contained other FLSA allegations, most often that the 

employer failed to keep proper records of hours worked by the employees 

(45 percent); failed to post or provide information about the FLSA, as 

required (7 percent); or violated requirements pertaining to tipped workers 

such as restaurant wait staff (6 percent).

 31 FLSA lawsuits filed by DOL may contain certain other claims that may not be made by 

private litigants, such as those related to child labor violations. However, the DOL-initiated 

lawsuits in our sample did not include such additional allegations.

32 Our estimates of allegations from FLSA lawsuits reflect only the issues that were 

specifically mentioned in the complaints that we reviewed from each lawsuit. Other 

lawsuits included in our sample may have involved these issues as well, but they were not 

specifically mentioned in the complaint, and therefore not counted for purposes of our 

review.

33 Unless specifically exempted, workers covered by the FLSA are generally entitled to 

overtime pay. 29 U.S.C. § 207. However, 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).

34 Many lawsuits included multiple FLSA allegations. For example, the complaint from a 

particular lawsuit could include allegations of both minimum wage and overtime violations.
Page 15 GAO-14-69 FLSA Lawsuits

Figure 3: 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

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.

We also identified more specific allegations about how workers claimed 

their employers violated the FLSA. Nearly 30 percent of the FLSA 

lawsuits filed in fiscal year 2012 contained allegations that workers were 

required to work “off-the-clock” so that they would not need to be paid for 

that time, and 16 percent alleged that workers were not paid appropriately 

because they were employees who were misclassified as being exempt 
Page 16 GAO-14-69 FLSA Lawsuits

from FLSA protections.35 In a similar proportion of cases (13 percent), 

alleged overtime violations were claimed to be the result of the 

miscalculation of the wage rate a worker was entitled to as overtime pay. 

Such miscalculations could be the result, for example, of an employer not 

factoring in bonuses paid to workers when determining their regular rate 

of pay, which is used for the calculation of the overtime pay rate. Other 

lawsuits included allegations that a worker was misclassified as an 

independent contractor rather than an employee (4 percent). Independent 

contractors are generally not covered by the FLSA, including its minimum 

wage and overtime provisions.36

In our review of FLSA lawsuits filed in fiscal year 2012, we found that a 

majority of them were filed as individual actions, but collective actions 

also composed a substantial proportion of these 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.37 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. We found that an estimated 58 percent of the FLSA 

lawsuits filed in federal district court in fiscal year 2012 were filed 

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

16 percent of the FLSA lawsuits filed (about a quarter of all individually-

 35 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.

36 We previously found that employee misclassification could be a significant problem with 

adverse consequences. See GAO, Employee Misclassification: Improved Coordination, 

Outreach, and Targeting Could Better Insure Detection and Prevention, GAO-09-717

(Washington, D.C.: Aug. 10, 2009).

37 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 17 GAO-14-69 FLSA Lawsuits

filed lawsuits), however, were originally part of a collective action that was 

decertified (see fig. 4). For example, 14 of the 15 lawsuits in our sample 

filed in Alabama were filed by individuals who had been members of one 

of two collectives that were decertified in fiscal year 2012.38

Figure 4: FLSA Lawsuits Filed in Federal District Court in Fiscal Year 2012, by 

Initiation Type

 38 There are a few examples of spikes in the number of FLSA lawsuits filed in other states 

in a particular year that may also relate to collective actions. For example, in Nebraska, no 

more than 19 FLSA lawsuits were filed in any fiscal year from 1991 through 2012, except 

for 2006 when 176 FLSA lawsuits were filed. In that year, a federal judge for the District 

Court of Nebraska rejected certification of an FLSA collective action filed by 177 plaintiffs, 

finding that the plaintiffs’ circumstances were not sufficiently similar, and, therefore, the 

plaintiffs could not litigate their claims collectively.
Page 18 GAO-14-69 FLSA Lawsuits

Consistent with its stated mission of promoting and achieving compliance 

with labor standards, WHD has an annual process for planning how it 

targets its FLSA enforcement resources. Each year, WHD’s national 

office plans the share of its enforcement resources that will be used for 

targeted investigations versus responding to complaints it receives from 

workers or their representatives about potential FLSA violations.

To plan the deployment of its resources for targeted investigations, WHD 

identifies broad initiatives that focus on industries it determines have a 

high likelihood of FLSA violations and where workers may be particularly 

vulnerable. For example, WHD has targeted industries where workers 

may be less likely to complain about violations or where the employment 

relationship is splintered because of models such as franchising or 

subcontracting. WHD’s regional and district offices then refine the list of 

priority industries to develop plans that focus on the most pressing issues 

in their areas. Each year, with input and ultimate approval from the 

national office, WHD’s regional and district offices use these plans to 

target their enforcement resources.

In developing their enforcement plans, WHD considers various inputs. For 

example, WHD officials consider the nature and prevalence of FLSA 

violations by using historical enforcement data to study trends in FLSA 

complaints and investigation outcomes in particular areas. Universitybased researchers under contract with DOL have also used the agency’s 

historical enforcement data to help it plan for and strategize its FLSA 

WHD Plans Its FLSA 

Enforcement and 

Compliance 

Assistance Efforts 

Annually but Does 

Not Analyze Relevant 

Data to Improve Its 

Guidance

WHD Plans Its FLSA 

Enforcement Efforts Using 

an Annual, Data-Based 

Approach
Page 19 GAO-14-69 FLSA Lawsuits

enforcement efforts.39 In addition, WHD considers data from external 

sources, such as reports from industry groups, advocacy organizations, 

and academia. Although WHD’s national office is aware of significant 

FLSA lawsuits through its monitoring of FLSA issues in court decisions, 

WHD’s national, regional, and district offices do not analyze data on the 

number of FLSA lawsuits filed or use the results of such analyses to 

inform their enforcement plans. WHD officials noted that data on the 

number of FLSA lawsuits filed may not provide an accurate or sensitive 

gauge of FLSA violations because the number of workers involved and 

the outcomes of these lawsuits are not readily available.

In developing their annual enforcement plans, WHD regional and district 

offices identify approaches to achieving compliance given the industry 

structure and the nature of the FLSA violations that they seek to address. 

According to WHD internal guidance, strategic enforcement plans should 

not only include targeted investigations of the firms that employ workers 

potentially experiencing FLSA violations, but they should also 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.

Our prior reports and DOL’s planning and performance documents have 

emphasized the need for WHD to help employers comply with the FLSA. 

In documenting best practices about planning and performance 

management, we have suggested that agencies “involve regulated 

entities in the prevention aspect of performance.”

40 In the case of WHD, 

this best practice means helping employers voluntarily comply with the 

FLSA, among other laws. Similarly, DOL’s planning and performance 

documents have emphasized the importance of WHD promoting 

“sustained and corporate-wide compliance among employers” as a 

strategic priority.41 According to federal standards for internal control, 

 39 David Weil, principal investigator, “Improving Workplace Conditions through Strategic 

Enforcement: A Report to the Wage and Hour Division,” Boston University, May 2010.

40 GAO, Managing for Results: Strengthening Regulatory Agencies’ Performance 

Management Practices, GAO/GGD-00-10 (Washington, D.C.: Oct. 28, 1999).

41 See, for example, the U.S. Department of Labor FY 2012 Annual Performance Report.

In Its Compliance 

Assistance Efforts, WHD 

Does Not Analyze Data on 

Requests for Information 

on the FLSA in Planning 

How to Improve Its 

Guidance
Page 20 GAO-14-69 FLSA Lawsuits

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.42 In addition, 

according to our guidance on the Government Performance and Results 

Act of 1993 (GPRA),43 for planning and performance measures to be 

effective, federal managers need to use performance information to 

identify problems and look for solutions and approaches that improve 

results.44

WHD expects staff in its regional and district offices to play a key role in 

delivering some forms of compliance assistance. For example, staff in the 

district offices respond directly to employers’ questions about laws such 

as the FLSA by providing informal guidance, most of which is offered over 

the phone but is sometimes provided in writing when the guidance is 

particularly technical. In addition, in each of WHD’s five regions, there are 

three or more staff who specialize in community outreach and planning.45

These specialists are involved in planning meetings and developing 

outreach efforts and other forms of compliance assistance as part of the 

annual, district-specific enforcement plans. Finally, WHD investigators in 

the field are responsible for providing information and education to 

employers during their enforcement actions.

At the national level, WHD publishes FLSA-related guidance including 

notably its interpretive guidance, though this guidance is not informed by 

systematic analysis of data on requests for assistance. To develop and 

assess its interpretive guidance about the FLSA, WHD’s national office 

considers input from its regional offices, but it does not have a data-based 

approach that is informed by objective input, such as data on areas which 

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

(Washington, D.C.: November 1999).

43 GPRA, Pub. L. No. 103-62, 107 Stat. 285, required federal agencies to develop 

strategic plans with long-term goals, performance plans with annual goals and measures, 

and performance reports on prior year performance. GPRA was intended to improve 

federal program effectiveness, accountability, and service delivery, among other 

purposes. The GPRA Modernization Act of 2010, Pub. L. No. 111-352, 124 Stat. 3866 

(2011), amended GPRA and included a provision for agencies to conduct quarterly, datadriven performance reviews.

44 GAO, Managing for Results: Enhancing Agency Use of Performance Information for 

Management Decision Making, GAO-05-927 (Washington, D.C.: Sept. 9, 2005).

45 WHD has 26 such specialists nationwide.
Page 21 GAO-14-69 FLSA Lawsuits

employers and workers have indicated the need for additional guidance. 

Officials from WHD’s Office of Policy, which is responsible for publishing 

interpretive guidance about the FLSA, told us they meet with WHD 

regional and national office leadership weekly to discuss ongoing 

initiatives and emerging issues. While WHD collects some data on the 

inquiries it receives from the public via its call center, the Office of Policy 

does not analyze these data to help guide its development of interpretive 

guidance. According to WHD officials, the call center frequently refers 

callers with technical questions to a WHD district office, but WHD does 

not compile data on FLSA-related questions received by its district 

offices. In addition, WHD does not use advisory panels to gather input 

about areas of confusion that might be addressed with the help of 

additional or clarified interpretive guidance on the FLSA. WHD officials 

cited the administrative burdens associated with the Federal Advisory 

Committee Act as a deterrent to using such panels to inform its guidance.

At the same time, despite the issuance of several FLSA-related fact 

sheets, WHD’s publication of FLSA-related interpretive guidance has 

declined in recent years.46 From 2001 to 2009, WHD published on its 

website, on average, about 37 FLSA interpretive guidance documents 

annually. However, in the last 3 years (2010 to 2012), WHD published 

seven FLSA interpretive guidance documents.47 WHD officials cited 

various reasons for this decline, including the resource-intensive nature of 

developing the guidance; WHD’s finite resources; and other priorities, 

 46 Our review of trends in the quantity of interpretive guidance on the FLSA published by 

WHD included administrator interpretations, opinion letters, non-administrator letters, and 

field assistance bulletins. Field assistance bulletins, unlike the other forms of interpretive 

guidance, are addressed to WHD staff; but the field assistance bulletins are published on 

WHD’s public website along with the other forms of guidance. Our review excluded 

guidance that is not published on WHD’s website page for interpretive guidance. For 

example, our analysis excluded fact sheets, which are general guidance documents 

published elsewhere on WHD’s website, and private correspondence to an individual 

employer or worker. 

47 Our analysis included published guidance that WHD subsequently withdrew: 1 opinion 

letter published in 2002, 1 opinion letter published in 2006, 1 opinion letter published in 

2007, 18 opinion letters published in 2009, 2 non-administrator letters published in 2009, 

and 1 field assistance bulletin published in 2010. The withdrawal of the opinion letter 

published in 2006 was invalidated by the Court of Appeals for the D.C. Circuit, which held 

that DOL must use the rulemaking process—which requires DOL to provide public notice 

and an opportunity to comment on a proposed rule before it is finalized—to change an 

authoritative interpretation of DOL’s regulations under the FLSA. See Mortgage Bankers 

Ass’n v. Harris, 720 F.3d 966 (D.C. Cir. 2013).
Page 22 GAO-14-69 FLSA Lawsuits

such as promoting compliance with the Family and Medical Leave Act of 

1993. In addition, WHD cited its issuance of several FLSA-related fact 

sheets, which WHD posts separately from interpretive guidance on its 

website. For example, in September 2013, WHD published several fact 

sheets about domestic service employment under the FLSA, and, in July 

2013, it revised a fact sheet about ownership of tips under the FLSA. 

According to WHD officials, there is no backlog of requests for FLSA 

interpretive guidance; however, WHD does not maintain a system for 

tracking requests for such guidance.

Because WHD does not have a systematic approach for identifying areas 

of confusion about the FLSA or assessing the guidance it has published, 

WHD may not be providing the guidance that employers and workers 

need. Of the nine wage and hour attorneys we interviewed, seven 

indicated that more interpretive guidance on the FLSA would be helpful to 

them.48 The attorneys cited determining whether workers qualify for 

exemptions and calculating workers’ regular rate of pay for purposes of 

overtime compensation as examples of FLSA topics on which more 

guidance would be useful.

Some policymakers have raised questions about the effect that an 

increasing number of FLSA lawsuits might have on employers’ finances 

and their ability to hire workers or offer flexible work schedules and other 

benefits, but it is difficult to isolate the effect of these lawsuits from the 

effects of other influences such as changes in the economy. On the other 

hand, the ability of workers to bring such suits is an integral part of FLSA 

enforcement because WHD does not have the capacity to ensure that all 

employers are in compliance with the FLSA. While there has been a 

significant increase in FLSA lawsuits over the last decade, the reason for 

this increase is difficult to determine: 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.

Improved guidance from WHD might not affect the number of FLSA 

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

WHD’s efforts to help employers voluntarily comply with the law. Without 

 48 These attorneys were a mix of those who tend to represent workers and those who tend 

to represent employers. For more information on how we identified them, see appendix I.

Conclusions
Page 23 GAO-14-69 FLSA Lawsuits

a precise understanding of the areas of the law and related regulations 

that are not clear to employers and workers, WHD may not be able to 

improve the guidance and outreach it provides in the most appropriate or 

efficient manner. 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. 

Moreover, using data about the needs of employers and workers in 

understanding the requirements of the FLSA would provide WHD greater 

confidence that the guidance and outreach it provides to employers and 

workers are having the maximum possible effect. Such data could, for 

example, serve as a benchmark WHD could use to assess the impact of 

its efforts.

To help inform its compliance assistance efforts, the Secretary of Labor 

should direct the WHD Administrator to 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.

We provided a draft of this report to DOL for review and comment. DOL's 

WHD provided written comments, which are reproduced in appendix II.

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. WHD also emphasized that it is difficult to determine 

with sufficient certainty that any particular action contributed to the 

described increase in FLSA lawsuits. In addition, WHD provided technical 

comments, which we incorporated as appropriate.

We also provided a draft of this report to the Administrative Office of the 

United States Courts and the Federal Judicial Center. These agencies 

had no comments—technical or otherwise—on the report.

Recommendation for 

Executive Action

Agency Comments 
Page 24 GAO-14-69 FLSA Lawsuits

As agreed with your office, unless you publicly announce the contents of 

this report earlier, we plan no further distribution until 30 days from the 

report date. At that time, we will send copies to the Secretary of Labor, 

the Director of the Administrative Office of the United States Courts, and 

the Director of the Federal Judicial Center. In addition, the report is 

available at no charge on the GAO website at http://www.gao.gov.

If you or your staff have any questions about this report, please contact 

me at (202) 512-7215 or moranr@gao.gov. Contact points for our Offices 

of Congressional Relations and Public Affairs may be found on the last 

page of this report. GAO staff who made key contributions to this report 

are listed in appendix III.

Sincerely yours,

Revae E. Moran

Director, Education, Workforce, and Income Security Issues
Appendix I: Scope and Methodology

Page 25 GAO-14-69 FLSA Lawsuits

To describe what is known about trends in the number of lawsuits filed 

under the Fair Labor Standards Act of 1938, as amended (FLSA), we 

analyzed federal district court data provided by the Federal Judicial 

Center.1 The data included case-specific information for all FLSA lawsuits 

filed in federal district court during fiscal years 1991 through 2012.2 We 

analyzed these data by year, circuit, state, and district.3 The Federal 

Judicial Center also provided data on the number of civil lawsuits filed 

during this time period, which we used to analyze the percentage of civil 

cases that were FLSA cases. We did not review FLSA lawsuits filed in 

state courts because data on these cases were not available in a 

consistent way. To provide context about identified trends such as the 

increase in FLSA lawsuits, we interviewed a range of FLSA stakeholders, 

including Department of Labor (DOL) officials, attorneys who specialize in 

wage and hour cases, federal district court and magistrate judges, 

officials from organizations representing workers and employers, and 

academics. To ensure balance, we interviewed both attorneys who 

represent plaintiffs and those who represent defendants. We identified 

some of these attorneys through organizations that represent workers, 

such as labor unions and advocacy organizations such as the National 

Employment Law Project, and industry organizations such as the National 

Small Business Association. In selecting judges to interview, we chose 

from districts with a significant increase in FLSA litigation in recent years 

as well as districts that had not seen such increases to ensure a variety of 

perspectives.

To provide information on selected characteristics of FLSA lawsuits filed, 

we reviewed a nationally representative random sample of complaints 

 1 The Federal Judicial Center is the research and education agency of the federal judicial 

system. Among other things, it compiles data from the federal courts via the Administrative 

Office of the U.S. Courts for research purposes.

2 Data on FLSA lawsuits in federal courts of appeals were not captured. FLSA lawsuits 

were identified as those with a “nature of suit” code of 710 (Fair Labor Standards Act). The 

nature of suit codes are a tool for categorizing the types of cases filed in the federal 

courts. The appropriate code is recorded by the attorney filing the lawsuit and filed with 

the court. Data are not readily available on the number of FLSA lawsuits that were 

collective actions or the number of plaintiffs contained in collective actions. Therefore, we 

were unable to determine the number of plaintiffs involved in these lawsuits.

3 We included data on the number of FLSA lawsuits and total civil lawsuits filed in federal 

district courts in Puerto Rico, Guam, the U.S. Virgin Islands, the Northern Mariana Islands, 

and the District of Columbia. However, we excluded these areas when we conducted 

trend analyses that tallied states. 

Appendix I: Scope and Methodology

Analysis of the Number 

and Characteristics of 

FLSA Lawsuits
Appendix I: Scope and Methodology

Page 26 GAO-14-69 FLSA Lawsuits

from FLSA lawsuits filed in federal district court during fiscal year 2012. 

The sample of 97 complaints from FLSA lawsuits was drawn from the 

case-specific FLSA lawsuit data provided by the Federal Judicial Center.4

The filing date was determined by the “filing date” field, which records the 

date a case was docketed in federal court. Cases that were initially filed in 

federal court, cases removed from state court to federal court, cases 

transferred from another federal court, and cases for which a new federal 

docket was otherwise created during fiscal year 2012 (e.g., an individual 

docket created in fiscal year 2012 after a previously filed collective action 

was decertified) could be in our sample. We did not review cases from the 

federal courts of appeals because data linking appeals to their 

corresponding cases filed in district court were not readily available. All 

estimates from our sample have a 95 percent confidence interval of within 

plus or minus 10 percentage points. Because we followed a probability 

procedure based on random selections, our sample is only one of a large 

number of samples that we might have drawn. Since each sample could 

have provided different estimates, we express our confidence in the 

precision of our particular sample’s results as a 95 percent confidence 

interval (e.g., plus or minus 10 percentage points). This is the interval that 

would contain the actual population value for 95 percent of the samples 

we could have drawn.

After the sample was drawn, we used the docket number associated with 

each lawsuit in the sample to retrieve the complaint from the Public 

Access to Court Electronic Records (PACER) database and review and 

record information about the lawsuit.5 In cases where multiple complaints 

were associated with a docket, such as amended complaints, we used 

information from the first available complaint in the docket.6 We selected 

 4 After drawing the sample, we identified four cases that were given the code 710, 

indicating that they were FLSA-related cases, but they were actually petitions to compel 

arbitration of an FLSA claim under the Federal Arbitration Act. Because these were not 

cases filed under the FLSA, we excluded and replaced those cases in the sample.

5 PACER is an electronic public access service that allows users to obtain case and 

docket information from federal appellate, district, and bankruptcy courts via the Internet. 

PACER is administered by the Administrative Office of the U.S. Courts.

6 In some cases, this approach meant we reviewed a complaint that had been initially filed 

prior to fiscal year 2012. For example, when individual actions were initiated in fiscal year 

2012 as a result of the decertification of an earlier collective action, the first available 

complaint in each individual docket was the original collective action complaint (which had 

been filed prior to fiscal year 2012). Thus, we recorded identical information for individual 

actions that originated from the same collective action. 
Appendix I: Scope and Methodology

Page 27 GAO-14-69 FLSA Lawsuits

this approach to ensure that we recorded information for each individual 

case at approximately the same stage of litigation. We relied solely on 

information that could be ascertained from the complaint; we did not do 

additional research to confirm the accuracy of the information.7 With 

respect to our analysis of the specific types of violations alleged in our 

sample of complaints, our estimates include only those cases in which an 

allegation was explicitly made in the complaint. It is possible that a larger 

percent of FSLA litigation involved specific issues that were not alleged 

explicitly in the complaint and instead were described more generically as 

overtime or minimum wage violations.8 In addition, we did not review 

subsequent documents filed in the case beyond the initial complaint. 

Therefore, our review does not provide any information about how these 

lawsuits were ultimately resolved. Information on the number of plaintiffs 

taking part in a collective action was neither consistently available in the 

complaints nor was it precise when it was available.

Our analysis with regard to the industries in which FLSA lawsuits are filed 

is based on the number of FLSA lawsuits filed, not the number of plaintiffs 

included in those lawsuits. A single collective action represents multiple 

plaintiffs. Therefore, the number of FLSA lawsuits filed against employers 

in a specific industry may not accurately reflect the number of workers or 

relative frequency of workers claiming FLSA violations by industry.

The complaint from each lawsuit was reviewed by a GAO analyst and a 

GAO attorney to identify the FLSA violation(s) it alleged and other 

information, such as whether the lawsuit was a collective action, whether 

there were associated allegations of state wage and hour law violations, 

 7 For example, we did not research a specific defendant’s company name in order to 

determine the industry of the worker or workers who filed the complaint, if the actual 

complaint did not provide enough information to make this determination.

8 As a hypothetical example, an alleged overtime violation may have resulted from 

workers being required to work “off-the-clock,” but the complaint may simply have 

described the issue as an overtime violation. 
Appendix I: Scope and Methodology

Page 28 GAO-14-69 FLSA Lawsuits

and the industry of the worker or workers who filed the lawsuit.9 In cases 

in which the two reviewers recorded information about the lawsuit 

differently, a discussion between them was held to resolve the difference.

We assessed the reliability of the data received from the Federal Judicial 

Center by interviewing officials at the Administrative Office of the U.S. 

Courts and the Federal Judicial Center and by reviewing documentation 

related to the collection and processing of the data. In addition, we 

conducted electronic testing to identify any missing data, outliers, and 

obvious errors. We determined that certain data fields were not 

sufficiently reliable, and therefore did not use them. For example, we 

could not analyze data about judgments such as the amount of monetary 

awards in FLSA lawsuits because, for a large percentage of the cases, 

the information on the judgment was missing. We determined that the 

data included in our report were sufficiently reliable for our purposes.

To describe how DOL’s Wage and Hour Division (WHD) plans its FLSA 

enforcement and compliance assistance efforts, we reviewed the 

agency’s planning and performance documents, as well as its published 

guidance on the FLSA. In addition, we interviewed DOL officials in WHD’s 

Office for Planning, Performance, Evaluation, and Communications; 

Office of Policy; two regional WHD offices; and DOL’s Office of the 

Solicitor about the agency’s enforcement and compliance assistance 

activities. In addition, we asked the other stakeholders we interviewed 

about their views of WHD’s enforcement and compliance assistance 

efforts. To provide context throughout the report, we also reviewed 

relevant federal laws and regulations. Finally, we compared WHD’s 

planning process to internal control standards (see GAO, Standards for 

Internal Control in The Federal Government, GAO/AIMD-00-21.3, 

Washington, D.C.: November 1999) and best practices that we have 

previously identified (see GAO, Managing for Results: Enhancing Agency 

 9 We used the North American Industry Classification System (NAICS) as a reference 

when determining the industries in which the workers who filed the lawsuits worked. The 

NAICS is the standard used by federal statistical agencies in classifying business 

establishments for the purpose of collecting, analyzing, and publishing statistical data 

related to the U.S. business economy. In some cases we were unable to determine the 

industry of the worker or workers who filed the lawsuit from the information contained in 

the complaint. The NAICS codes for the industries that appeared most frequently in our 

sample—accommodations and food services; manufacturing; construction; and other 

services (excluding public administration)—were 72, 31-33, 23, and 81, respectively.

Analysis of WHD’s 

Planning Efforts
Appendix I: Scope and Methodology

Page 29 GAO-14-69 FLSA Lawsuits

Use of Performance Information for Management Decision Making, 

GAO-05-927, Washington, D.C.: Sept. 9, 2005; and Managing for 

Results: Strengthening Regulatory Agencies’ Performance Management 

Practices, GAO/GGD-00-10, Washington, D.C.: Oct. 28, 1999). We did 

not assess WHD’s implementation of its enforcement and compliance 

assistance plans.

We conducted this performance audit from November 2012 to December 

2013 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 

that the evidence obtained provides a reasonable basis for our findings 

and conclusions based on our audit objectives.
Appendix II: Comments from the Department 

of Labor

Page 30 GAO-14-69 FLSA Lawsuits

Appendix II: Comments from the Department 

of Labor
Appendix II: Comments from the Department 

of Labor

Page 31 GAO-14-69 FLSA Lawsuits
Appendix III: GAO Contact and Staff 

Acknowledgments

Page 32 GAO-14-69 FLSA Lawsuits

Revae Moran, (202) 512-7215 or moranr@gao.gov

In addition to the contact named above, Betty Ward-Zukerman (Assistant 

Director), David Barish, James Bennett, Ed Bodine, David Chrisinger, 

Sarah Cornetto, Justin Fisher, Joel Green, Ying Long, and Walter Vance 

made significant contributions to this report. Also contributing to the report 

were Jessica Botsford, Susanna Clark, Melinda Cordero, Ashley McCall,

Sheila McCoy, Drew Nelson, Catherine Roark, Sabrina Streagle, Anjali 

Tekchandani, and Kimberly Walton.

Appendix III: GAO Contact and Staff 

Acknowledgments

GAO Contact

Staff 

Acknowledgments

(131222)
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