U.S. Department of Labor

Office of the Solicitor

November 2016
Table of Contents

ii

Table of Contents

Table of Contents.......................................................................................................................... ii

TAB 1: AGENCY ORGANIZATIONAL OVERVIEW .......................................................................... 1

Organizational Structure ............................................................................................................. 1

Organizational Changes During the Past Eight Years.............................................................. 15

Key Agency Stakeholders......................................................................................................... 16

TAB 3: INITIATIVES ..................................................................................................................... 17

Policy and Regulatory Issues.................................................................................................... 17

Management.............................................................................................................................. 19

TAB 4: BUDGET ........................................................................................................................... 20

TAB 5: AGENCY PERFORMANCE................................................................................................. 23

TAB 6: SIGNIFICANT CASES ........................................................................................................ 26
TAB 1: Agency Organizational Overview

1

TAB 1: AGENCY ORGANIZATIONAL OVERVIEW

Organizational Structure

The Office of the Solicitor (SOL) meets the legal service demands of the entire Department of 

Labor to help achieve the Department’s mission. The Solicitor’s Office has all the traditional 

functions of an agency general counsel (e.g. providing advice about appropriations, employment 

law matters, ethics, procurement, regulations, and legislation), but unlike other agencies who 

litigation is entirely handled by the Department of Justice, the Department of Labor has some

independent litigation authority under the laws DOL enforces. A list of important ongoing 

litigation handled by SOL can be found earlier in this book.

SOL works closely with the DOL agencies (who are SOL’s clients) to develop and implement 

specific policies, programs, and strategies; provide the agencies legal advice and representation 

before a variety of courts and administrative tribunals; help advance DOL initiatives and priorities 

by working with the agencies to address legal issues and concerns, draft or review proposed 

legislation and regulations and other guidance; and advance or defend litigation crucial to the 

mission of Department agencies.

SOL’s staff of approximately 730, including around 540 lawyers, is organized into 10 national 

divisions and seven regional offices with seven sub-regional offices. Staff are divided nearly 

equally between the national divisions and regional offices. The national divisions counsel the 

Department and its agencies on a variety of matters, including those related to appropriations, 

employment law, ethics, procurement, intergovernmental affairs, advice on regulations and subregulatory guidance, legislation, and litigation, and, in some instances, handle district court and 

appellate litigation. The regional offices focus on district court-level litigation and administrative 

proceedings, while also counseling the agencies’ regional operations. Work is allocated among 

national divisions’ by agency client and subject matter. It is allocated among the regional offices’ 

by geography.
TAB 1: Agency Organizational Overview

2

Organizational Chart

Solicitor of Labor

M. Patricia Smith

(PAS)

Deputy Solicitor

Vacant

(Non-Career SES)

Deputy Solicitor for 

National Operations

Susan Harthill 

(Career SES)

Deputy Solicitor for 

Regional Enforcement

Katherine E. Bissell

(Career SES)

Black Lung and 

Longshore Legal Services

Vacant

(Career SES)

Civil Rights and LaborManagement

Beverly Dankowitz

(Career SES)

Employment and Training 

Legal Services

Jeffrey L. Nesvet

(Career SES)

Office of Legal Counsel

Robert A. Shapiro

(Career SES)

Management and 

Administrative Legal 

Services

Rose Audette

(Career SES)

Mine Safety and Health

Vacant

(Career SES)

Fair Labor Standards

Jennifer S. Brand

(Career SES)

Occupational Safety and 

Health

Ann S. Rosenthal

(Career SES)

Federal Employees’ and 

Energy Workers’ 

Compensation

Thomas G. Giblin

(Career SES)

Plan Benefits Security

William Scott

(Career SES)

Atlanta Regional Solicitor

Stanley E. Keen

(Career SES)

Boston Regional Solicitor

Michael D. Felsen

(Career SES)

Chicago Regional Solicitor

Christine Heri

(Career SES)

Dallas Regional Solicitor

James E. Culp

(Career SES)

New York Regional 

Solicitor

Jeffrey S. Rogoff

(Career SES)

Philadelphia Regional 

Solicitor

Oscar L. Hampton III

(Career SES)

San Francisco Regional 

Solicitor

Janet M. Herold

(Career SES)
TAB 1: Agency Organizational Overview

3

Divisions

Black Lung and Longshore Legal Services Division (BLLLS)

BLLLS provides a full range of legal services to the Office of Workers’ Compensation Program’s 

(OWCP) Divisions of Coal Mine Workers’ Compensation and Longshore and Harbor Workers’ 

Compensation. These agencies administer the Black Lung Benefits Act, the Longshore and Harbor 

Workers’ Compensation Act, and the Longshore Act’s extensions: the Defense Base Act, the Outer 

Continental Shelf Lands Act, and the Nonappropriated Fund Instrumentalities Act. The Division’s 

primary activities are to: represent the Director, OWCP, in litigation under the Black Lung Benefits 

and Longshore Acts before the Benefits Review Board and the federal courts of appeals; advise the 

Director, OWCP, on all legal matters involving the Black Lung Benefits and Longshore Acts, 

including statutory and regulatory construction, administrative law questions, and case-specific 

issues; disseminate information and provide advice to SOL’s regional offices, who are chiefly 

responsible for administrative hearing and trial work under these statutes; enforce final 

compensation orders entered against coal companies and their insurers under the Black Lung 

Benefits Act; represent the Director, OWCP, in bankruptcy proceedings; draft regulations, preamble 

text, and related documents for OWCP; and draft legislation and provide technical assistance to Hill 

staff upon request.

The Associate Solicitor, who is assisted by the Deputy Associate, heads the Division and oversees 

all legal work. Six counsels supervise specific categories of legal work (e.g., appellate litigation or 

regulatory work) or particular statutory areas (e.g., Longshore Act or enforcement). The Division 

currently employs 19 lawyers and eight support staff.

Civil Rights and Labor Management Division (CRLM)

CRLM provides legal services to three major programs: the Office of Federal Contract Compliance 

Programs (OFCCP); the Office of Labor-Management Standards (OLMS); and the Civil Rights 

Center (CRC) – which is part of the Office for the Assistant Secretary for Administration and 

Management (OSAM) – as well as several other programs described below.

The Division provides legal services to the OFCCP in enforcement efforts involving federal 

contractors and subcontractors arising under: Executive Order 11246, as amended; Section 503 of 

the Rehabilitation Act of 1973, as amended; and the Vietnam Era Veterans' Readjustment 

Assistance Act of 1974, as amended. The Division represents the Secretary in administrative 

hearings and appeals arising under the OFCCP’s programs, provides legal services to the Regional 

Offices in their OFCCP enforcement work, and assists the Department of Justice with its 

representation of the OFCCP in federal court. The Division also provides a wide range of other 

legal services to the OFCCP, including working closely with the agency to develop and draft 

regulations and sub-regulatory guidance, and providing legal advice about development and 

implementation of agency enforcement initiatives.

The Division provides a broad range of legal services, including advice, litigation, and rulemaking 

to OLMS concerning the administration and enforcement of the Labor Management Reporting and 

Disclosure Act of 1959 (LMRDA). The Division also provides legal services to OLMS concerning 

the provisions of section 1209 of the Postal Reorganization Act of 1970, which directly apply the 

provisions of the LMRDA to labor organizations composed of postal employees; the provisions of 

Section 701 of the Civil Service Reform Act of 1978; Section 1017 of the Foreign Service Act of 
TAB 1: Agency Organizational Overview

4

1980; Section 220(a)(l) of the Congressional Accountability Act of 1995; and 49 U.S.C. § 5333(b), 

which concerns the certification of mass transit employee protection agreements.

The Division provides legal services to CRC on matters arising under the nondiscrimination 

provisions Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments Act of 

1972, Sections 504 and 508 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, 

the Americans with Disabilities Act of 1990, and Section 188 of the Workforce Innovation and 

Opportunity Act (WIOA), as well as internal equal employment opportunity cases and related 

matters.

Additionally, the Division provides legal services to the Office of Apprenticeship regarding matters 

arising under 29 CFR Part 30, Equal Employment Opportunity in Apprenticeship and Training; the 

Office of Disability Employment Policy; the Center for Faith-Based and Neighborhood 

Partnerships; the Women's Bureau; and to the Veterans' Employment and Training Service.

The Division also maintains liaison with the Equal Employment Opportunity Commission and the 

Department of Justice, and participates in matters of common concern. In addition, the Division 

provides advice to the Department, and assists in preparing regulations, legislative proposals, and 

testimony in civil rights and labor-management matters.

The Associate Solicitor, who is assisted by the Deputy Associate, heads the Division and oversees 

all legal work. The Division has a counsel for Civil Rights and Appellate Litigation, Interpretation 

and Advice, Litigation and Regional Coordination, respectively, and two counsels for LaborManagement Programs. The Division currently employs 20 lawyers and five support staff.

Employment and Training Legal Services Division (ETLS)

ETLS provides legal advice, rulemaking, and litigation services to the Employment and Training 

Administration (ETA), the Bureau of International Labor Affairs (ILAB) and the Veterans' 

Employment and Training Service (VETS). 

The Division assists ETA in implementing a number of statutes providing employment and training 

services, including WIOA, enacted in 2014, which modernized a number of federal job-training 

programs and provides job seekers and employers access to the employment, training, and 

information services designed to keep them competitive in the 21st century economy. The Division 

provides ETA with legal services concerning a wide variety of employment and training programs 

that contribute to the more efficient functioning of the country’s labor market by providing high 

quality job training, employment, labor market information, and income maintenance services for 

adults and youth, primarily through state and local workforce development systems. Specific ETA 

programs for which the Division is responsible for providing legal services include the 

approximately $8 billion of WIOA grants that ETA gives out each year to fund employment and 

training programs, the Job Corps, the federal-state unemployment compensation program, the Trade 

Adjustment Assistance program for workers who have been displaced due to international trade, the 

Disaster Unemployment Assistance program, issuance of temporary and permanent labor 

certifications required by the Immigration and Nationality Act before foreign workers may enter the 

United States for employment, and the registered apprenticeship program.
TAB 1: Agency Organizational Overview

5

The Division provides legal services to VETS, an agency that supports employment and training 

programs for veterans and separating service members, including the Jobs for Veterans State Grants 

and the Homeless Veterans’ Reintegration and Transition Assistance Programs. It also assists 

VETS in carrying out its responsibilities under the Uniformed Services Employment and 

Reemployment Rights Act, which protects service members’ civilian jobs while they perform 

military service and prohibits employment discrimination based on past, present, or intended 

service. The Division also assists VETS in carrying out its responsibilities regarding enforcement 

of federal executive branch veterans' preference laws.

The Division provides legal services to ILAB to assist it in carrying out the international activities 

of the Department, including responsibilities concerning the International Labor Organization and 

other international organizations. The Division assists ILAB in developing protections for workers’ 

rights in trade agreements and monitoring compliance with those agreements. The Division assists 

ILAB with its mission to help promote core international labor standards (such as the prevention of 

the worst forms of child labor) across the world by reviewing technical assistance projects and 

reports addressing these issues.

The Division is managed by the Associate Solicitor, the Deputy Associate Solicitor and five 

counsels. In addition to these seven lawyers, the Division employs 19 staff attorneys assigned to 

the five counsel areas: Employment and Training, Immigration Programs, International Affairs and 

Uniformed Services Employment and Reemployment Rights Act (USERRA), Job Corps and 

Apprenticeship, and Unemployment Programs. The Division also has one support staff position – a 

management and program analyst, who provides administrative support to the Division.

Fair Labor Standards Division (FLS)

FLS counsels the Wage and Hour Division and, with respect to whistleblower programs, the 

Occupational Safety and Health Administration (OSHA). The Division is responsible for providing 

legal services in connection with the administration and enforcement of a broad range of federal 

labor standards laws providing protections for the nation’s workforce. These include the minimum 

wage, overtime pay, child labor, and break time for nursing mothers provisions of the Fair Labor 

Standards Act (FLSA); the wage and working condition protections for farm workers under the 

Migrant and Seasonal Agricultural Workers Protection Act (MSPA); enforcement of OSHA field 

sanitation and temporary labor camp standards; the leave entitlement and job protections under the 

Family and Medical Leave Act; the prevailing wage and fringe benefits for workers on federal 

contracts under the Service Contract Act and Davis-Bacon and Related Acts; the non-displacement, 

minimum wage, and paid sick leave provisions for workers on certain federal contracts under 

Presidential Executive Orders 13459 (youth programs), 13658 (minimum wage) and 13706 (paid 

sick leave); various worker protections afforded to temporary foreign workers, including workers 

with H visas and those with T and U visa certifications to certain victims of crimes and trafficking; 

the whistleblower protections of seventeen laws involving environmental and nuclear safety, 

transportation, consumer and investor protection, and health insurance; worker garnishment 

protections; and employee polygraph protection.

The Division is responsible for some appellate litigation, as well as assistance in the preparation of 

regulations, interpretations, and opinions pertaining to these statutes, and otherwise advising the 

Solicitor, the Wage and Hour Division and the Directorate of Whistleblower Protection Programs in 

OSHA on these matters. The Division's appellate litigation includes appeals before the 
TAB 1: Agency Organizational Overview

6

Department’s Administrative Review Board or in federal courts stemming from agency 

enforcement actions as well as amicus briefs in private cases concerning important labor standards 

and whistleblower protection issues. The Division provides legal advice on a wide variety of 

matters related to labor standards and whistleblower protection, including proposed legislation, 

agency policies, enforcement initiatives, internal guidance to investigators, and public materials for 

employees and employers to assist them in understanding their rights and responsibilities under the 

laws within the Division’s responsibility.

The Associate Solicitor, who is assisted by the Deputy Associate, heads the Division and oversees 

all legal work. Six counsels supervise Appellate Litigation, Contract Labor Standards, Child Labor 

and Special FLSA Projects, Legal Advice, Trial Litigation, and Whistleblower Programs 

respectively. The Division currently employs 25 lawyers and five support staff.

Federal Employees’ and Energy Workers’ Compensation Division (FEEWC)

FEEWC provides a variety of legal services to the OWCP with respect to several benefit programs 

it administers – the Energy Employees Occupational Illness Compensation Program Act 

(EEOICPA), the Federal Employees’ Compensation Act (FECA), and the War Hazards 

Compensation Act (WHCA) – as well as administering the subrogation provisions of FECA on 

behalf of OWCP for all employees covered by the FECA. The Division also provides legal services 

to the entire Department concerning the Federal Tort Claims Act (FTCA) and the Military 

Personnel and Civilian Employees Claims Act (MPCECA). The Division provides litigation 

support to the Department of Justice in cases arising under the above-referenced statutes and benefit 

programs.

The Division consists of three permanent units: the Claims and Compensation Unit, managed by the 

Counsel for Claims, which provides all legal services to OWCP relating to FECA and WHCA as 

well as to the Department regarding the FTCA and MPCECA; the Energy Unit, managed by the 

Counsel for Energy Employees Compensation, which provides all legal services to OWCP relating 

to EEOICPA; and the FECA Subrogation Unit, managed by the Counsel for FECA Subrogation, 

which administers the subrogation provisions of FECA on behalf of OWCP. The Associate 

Solicitor, who is assisted by the Deputy Associate, heads the Division and oversees all legal work. 

The Division currently employs 17 lawyers and 25 administrative and support staff.

Office of Legal Counsel (OLC)

OLC is responsible for support of legislative and legal advice matters that affect all agencies of the 

Department. The Office has four primary areas of responsibility: legislation, ethics, the Honors 

Attorney Program, and administrative law.

The Office provides legal support to the Secretary and other senior agency officials in preparing and 

evaluating legislation affecting the Department. Specifically, attorneys in the Office: coordinate the 

departmental review of legislative materials that may impact the agencies’ programs and activities, 

prepare or review DOL views letters or narrative comments on pending legislation, draft or assist in 

the preparation of testimony to be presented by departmental officials before congressional 

committees, and draft or assist in the preparation of legislation pertaining to departmental programs 

and presidential initiatives. In undertaking these assignments, attorneys from the Office work 

closely with program officials, attorneys from other SOL divisions, the Department’s Office of 

Congressional and Intergovernmental Affairs, and the Office of Management and Budget.
TAB 1: Agency Organizational Overview

7

The Office is also responsible for managing the Department’s ethics program. In this role, it 

provides a range of both programmatic and legal services. It provides advice and interpretations on 

the full range of laws and regulations that govern federal employee ethical conduct as well as 

employee participation in political activities. It also provides training to the entire Department on 

these laws and regulations; administers financial disclosure requirements that apply to many 

employees; and plays a critical role in the confirmation process for presidentially-appointed/senateconfirmed (PAS) appointees, coordinating with the Office of Government Ethics and White House 

Counsel.

The Honors Attorney Program is a two-year program for exemplary recent law school graduates 

interested in handling a broad range of labor and employment law issues in a major government 

agency. Honors Attorneys are given a wide range of work, exposing them to the Department’s 

myriad areas of responsibility; and are given an opportunity to develop their basic legal skills 

through training, carefully-selected individual assignments, and details within SOL. Upon 

completion of the program, Honors Attorneys are placed in a national division office or a regional 

office. 

Finally, the Office provides advice to DOL agencies and SOL divisions on general issues of 

administrative law and procedure. This includes advice on the Administrative Procedure Act, the 

Regulatory Flexibility Act, the Paperwork Reduction Act, and a number of Executive Orders 

relating to the rulemaking and administrative adjudicative processes in the Department.

The Associate Solicitor heads the Division and oversees all legal work. He is assisted by the Ethics 

Counsel and the Counsel for Legislative Affairs. The Division currently employs 23 lawyers and 

three support staff.

Management and Administrative Legal Services (MALS)

MALS is a combined legal and administrative office. It is responsible for providing legal services 

to the Department as a whole on a wide range of general law matters typically handled by federal 

“general counsel” offices, and also serves as SOL’s primary administrative office. 

On the legal side, MALS provides advice and litigation representation to the Department on diverse 

general law areas, including federal procurement and contracting, internal employment law and 

labor relations, the Freedom of Information Act (FOIA) and Privacy Act, and matters involving

third party subpoenas. MALS attorneys represent the Department in litigation and administrative 

hearings in all of these areas, and assist the Department of Justice in related federal court litigation. 

MALS also advises the Department on matters pertaining to appropriations law; delegations of 

authority, memoranda of understanding; intellectual property; information law; and a number of 

governmental administrative mandates, including the Federal Advisory Committee Act (FACA), 

the Federal Records Act, the Paperwork Reduction Act, the e-Government Act, and obligations 

relating to e-discovery and litigation support. In addition, the Division provides a full range of legal 

services to the following DOL agencies: OASAM; the Office of the Chief Financial Officer 

(OCFO); the Bureau of Labor Statistics (BLS); the Office of the Assistant Secretary for Policy 

(OASP); the Office of Public Affairs (OPA); and the EEOICPA Ombudsman.

On the administrative side, MALS is responsible for the management and administrative services 

that SOL provides to its component divisions, and for liaison with the Department’s central 
TAB 1: Agency Organizational Overview

8

business offices. Among other things, MALS handles SOL’s internal systems for financial 

management and budgeting, human resources and labor relations, information technology, and 

litigation support. MALS also provides general administrative and technical support for SOL, such 

as by maintaining videoconferencing and telecommunications systems, overseeing space utilization, 

and providing services pertaining to records management and technology purchase and 

maintenance. Additionally, the Office of Information Services within MALS serves as the 

Department’s FOIA administrative office, which includes responsibility for guidance and training 

to the decentralized FOIA offices throughout the Department and reporting on the Department’s 

overall FOIA performance.

MALS is led by the Associate Solicitor and two Deputy Associate Solicitors. MALS staff includes 

lawyers and paralegals in five counsel areas: Counsel for Appropriations Law; Counsel for 

Employment Law; Counsel for FOIA and Information Law; Counsel for FOIA Appeals, Paperwork 

Reduction Act, and Federal Records Act; and Counsel for Procurement Law. MALS also includes 

five administrative units: the SOL Human Resources Office, the SOL Financial Management 

Office, the SOL Legal Technology Unit, the SOL Litigation Support Unit, and the Office of 

Information Services (for DOL FOIA services). The Division currently employs 25 lawyers and 29 

administrative and support staff.

Mine Safety and Health Division (MSH)

MSH provides legal services to the Assistant Secretary for Mine Safety and Health and the Mine 

Safety and Health Administration (MSHA) in connection with the development and enforcement of 

mandatory safety and health standards applicable to mining, as well as legal advice covering issues 

of administrative law and interpretation of the Federal Mine Safety and Health Act of 1977, as 

amended by the Mine Improvement and New Emergency Response Act of 2006 (MINER Act) 

(collectively, Mine Act), and the standards and regulations promulgated pursuant to the Mine Act. 

The Division represents the Secretary of Labor in certain administrative hearings, civil trials and 

appellate litigation arising under the Act

Appellate attorneys handle all appeals before the Federal Mine Safety and Health Review 

Commission (FMSHRC), and represent the Department in cases in the federal courts of appeals 

arising under the Mine Act. Working closely with MSHA, trial attorneys litigate some cases . They 

coordinate with, and provide substantive litigation policy guidance to, attorneys in the SOL’s 

regional offices involved in litigation of cases before FMSHRC Administrative Law Judges. They 

provide on-site legal advice during major accident investigations and participate in the development 

and review of all agency accident reports. Trial attorneys provide training and legal oversight to 

MSHA’s Conference and Litigation Representatives, who are lay representatives who handle 

certain cases before the FMSHRC. Attorneys in the Standards and Legal Advice Section provide 

legal advice on the development of standards and regulations as well as jurisdictional and policy 

issues under the Mine Act. They draft and review policy and compliance assistance documents. In 

addition, they represent MSHA in public hearings, and draft and review testimony for and 

responses to questions from Congress. They provide legal advice concerning appropriations law, 

FOIA disclosure, procurement, ethics, administrative law, legislation, and information collection 

requirements.

The Associate Solicitor, who is assisted by the Deputy Associate, heads the Division and oversees 

all legal work. The Division has two Trial Litigation Counsels, an Appellate Litigation Counsel 
TAB 1: Agency Organizational Overview

9

and a Counsel for Standards and Legal Advice. The Division currently employs 24 lawyers and 

three support staff.

Occupational Safety and Health Division (OSH)

OSH is responsible for the legal work arising out of the Department’s administration and 

enforcement of the Occupational Safety and Health Act of 1970 (OSH Act), as amended, and the 

anti-retaliation provisions of the Surface Transportation Assistance Act of 1982, and the Seaman's 

Protection Act. The Division’s primary function is providing legal advice and litigation services to 

OSHA.

One of the Division’s functions is to work with OSHA to promulgate mandatory health and safety 

standards. These rulemakings involve complex procedural steps (e.g., Small Business Regulatory 

Enforcement Fairness Act panels, peer review requirements, and ALJ hearings) that do not affect 

other Department agencies and because OSHA standards face intense scrutiny from OMB and 

Congress. The Division also supports other OSHA rulemakings, such as those related to 

recordkeeping requirements and whistleblower complaint procedures.

The Division conducts appellate litigation before both the Occupational Safety and Health Review 

Commission, an independent federal agency that adjudicates challenges to OSHA enforcement 

actions, and federal district courts and courts of appeals. This litigation includes review of OSHA 

citations, search warrant and subpoena enforcement, challenges to OSHA standards, review of 

whistleblower decisions by either the Administrative Review Board or federal district courts, 

depending on the statute, and working with the Department of Justice on district court litigation, 

including challenges to procedural and recordkeeping regulations and occasional defensive 

litigation.

The Division also provides legal services on a broad range of matters, including whistleblower and 

recordkeeping issues, and overseeing regulations related to those areas. It works closely with 

OSHA on enforcement initiatives. It coordinates with the SOL regional offices on OSHA litigation 

matters, serving as a resource and sometimes participating in their litigation. The Division provides 

legal services in connection with OSHA state plans, guidance products; training programs, FOIA 

responses, and voluntary programs and compliance assistance efforts. It represents the Department 

vis-à-vis other federal agencies, the legislative branch, states, private sector groups, and members of 

the public on OSHA-related matters. The Department works closely with the Office of 

Congressional and Intergovernmental Affairs (OCIA) on legislative issues related to OSHA, and 

helps OPA assure that press and other public statements are accurate and do not create legal issues.

The Division is managed by an Associate Solicitor and Deputy Associate Solicitor, as well as six 

counsels. The Division has two Appellate Litigation Counsels, two Standards Counsels (who 

advise on rulemaking), and two General Legal Advice Counsels. The Division currently employs 

30 lawyers and five support staff.

Plan Benefits Security Division (PBSD)

PBSD conducts litigation and provides legal advice to enforce and interpret the Employee 

Retirement Income Security Act of 1974 (ERISA), the law that protects the interests of privatesector employees and retirees in their pension, health care, and other employee benefit plans, 

largely by imposing stringent fiduciary duties on those who control those plans and plan assets. 
TAB 1: Agency Organizational Overview

10

Since 1974, Congress has enacted major amendments to ERISA, including the Affordable Care Act 

of 2010 (ACA), which have steadily increased the Division’s responsibilities. PBSD also has 

responsibilities under the Federal Employee Retirement Security Act (FERSA), which protects the 

retirement benefits of employees of the federal government. The Division’s client agency is the 

Employee Benefits Security Administration (EBSA), which investigates ERISA violations and 

refers cases to SOL for enforcement and promulgates ERISA regulations and sub-regulatory and 

interpretive guidance.

SOL has independent authority to conduct litigation on behalf of the Secretary of Labor to enforce 

ERISA in federal courts. The Division provides pre-referral legal assistance in EBSA 

investigations. PBSD also conducts litigation before ALJs to collect civil monetary penalties 

imposed on plan administrators that fail to comply with ERISA’s annual reporting and auditing 

requirements.

PBSD also represents the Secretary in appeals in DOL ERISA enforcement cases, participates 

frequently as amicus curiae in the courts of appeals and provides legal support to the U.S. Solicitor 

General in cases involving ERISA before the Supreme Court.

The Division provides legal advice to EBSA at every stage of the rule-making process and in the 

formulation and issuance of sub-regulatory and interpretative guidance. The Division prepares 

legal opinions and guidance for EBSA and SOL on a wide variety of ERISA issues and related 

aspects of many other laws, including tax, securities, banking, and insurance laws. PBSD attorneys 

also provide legal advice and direction to EBSA in investigating and building cases in new 

enforcement areas, particularly in connection with EBSA’s Major Case Initiative and Health Plan 

Enforcement Project. Further, PBSD provides advice on matters arising from the Secretary’s 

position as Chair of the PBGC Board of Directors. PBSD attorneys also provide training to SOL 

attorneys and EBSA investigators on ERISA and related topics.

Under the leadership of the Associate Solicitor and his Deputy, there are four counsels supervising 

Fiduciary Litigation, General Litigation, Litigation, and Regulations, respectively. The Division is 

comprised of 30 attorneys and eight support staff.

Regional Offices

Atlanta

The Atlanta Regional Office is responsible for civil trial litigation and legal advice and support for 

DOL for matters arising in Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, 

South Carolina, and Tennessee. The Region has a branch office in Nashville, which focuses 

primarily on litigation in Tennessee and Kentucky, though the two offices increasingly share and 

partner work throughout the region. The Region also has a separate office in Nashville, which 

focuses solely on work related to the MSHA Litigation Backlog Project (MLBP).

The Region is headed by the Regional Solicitor in Atlanta, with assistance from the Deputy 

Regional Solicitor. The Nashville office is managed by an Associate Regional Solicitor. The bulk 

of the litigation work is directly supervised by seven counsels: Wage Hour; OSHA; Civil Rights; 

ERISA; MSHA and Workers Compensation; MSHA in Nashville; and the MLBP Projects 
TAB 1: Agency Organizational Overview

11

Manager. There are 26 attorneys in Atlanta, 14 attorneys in Nashville, and 10 attorneys in the 

MLBP. They are supported by a staff of 17.

Boston

The Boston Regional Office is responsible for civil trial litigation and legal advice and support for 

the DOL for matters arising in Connecticut, Maine, Massachusetts New Hampshire Rhode Island 

and Vermont.

The Region recommends and prosecutes litigation in administrative law courts and federal district 

and bankruptcy courts throughout New England, provides legal and strategic advice and assistance 

to DOL worker protection agencies in support of their enforcement priorities, works cooperatively 

with state and local governments to achieve common worker protection goals, and assists U.S. 

Attorney’s offices in the prosecution of criminal cases arising from DOL agency civil 

investigations.

The Region is headed by the Regional Solicitor with assistance from the Deputy Regional solicitor. 

Four counsels supervise OSHA, ERISA, Wage and Hour Programs and Civil Rights respectively. 

The Region employs 26 attorneys and five support staff.

Chicago

The Chicago Regional Office is responsible for civil trial litigation and legal advice and support for 

DOL for matters arising in Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, 

Nebraska, Ohio, and Wisconsin. It also handles ERISA matters arising from Kentucky. The 

Region has two branch offices located in Kansas City and Cleveland.

The Region recommends and prosecutes litigation at the federal district court and administrative 

trial levels, prepares legal interpretations and opinions, and provides assistance to the U.S. 

Attorney’s offices in the prosecution of criminal case arising from DOL agency civil investigations. 

The Region is headed by the Regional Solicitor with assistance from the Deputy Regional Solicitor. 

The Cleveland and Kansas City offices are each managed by an Associate Regional Solicitor. Five 

counsels in Chicago supervise OSHA, MSHA, Wage and Hour, ERISA and Civil Rights matters 

respectively. Cleveland has a Wage and Hour/Civil Rights Counsel and an OHSA Counsel, while 

Kansas City has a Wage and Hour Counsel and an OSHA/MSHA Counsel. The Region employs a 

total of 69 employees – 35 in Chicago, 19 in the Kansas City, and 15 in Cleveland. 57 are lawyers 

and 12 are support staff.

Dallas

The Dallas Regional Office is responsible for most civil trial litigation and legal advice and support 

for DOL for matters arising in Arkansas, Colorado, Louisiana, New Mexico, North Dakota, 

Oklahoma, South Dakota, Texas, Utah, and Wyoming. The Region has a branch office in Denver, 

which includes a separate group that focuses solely on work related to the MLBP.

The Region recommends and prosecutes litigation at the administrative proceeding and federal 

district court levels, prepares legal interpretations and opinions, provides advice and assistance to 

DOL agencies, and assists the U.S. Attorney’s offices in the prosecution of criminal cases arising 
TAB 1: Agency Organizational Overview

12

out of DOL agency civil investigations. The attorneys employed by the Region may be called upon 

to handle cases arising out of any of the DOL’s program areas.

The Region is headed by the Regional Solicitor with assistance from the Deputy Regional Solicitor. 

There are five counsels in Dallas, supervising Civil Rights, ERISA, MSHA, OSHA, and Wage and 

Hour respectively. Denver has a Safety and Health Counsel and a Wage and Hour Counsel. The 

Dallas office has 26 attorneys and seven support staff. The Denver office consists of 13 attorneys 

and four support staff. Ten attorneys and one support staff member work on the MLBP.

New York

The New York Regional Office litigates cases pursuant to the laws administered by DOL in New 

Jersey, New York, Puerto Rico, and the U.S. Virgin Islands. The Region also provides legal advice 

to DOL agencies in these states and territories.

The Region recommends and prosecutes litigation at the administrative proceeding and federal 

district court levels, prepares legal interpretations and opinions, provides advice and assistance to 

DOL agencies, and assists the U.S. Attorney’s offices in the prosecution of criminal cases arising 

out of DOL agency civil investigations. The attorneys employed by the Region may be called upon 

to handle cases arising out of any of the DOL’s program areas. 

The Region is headed by the Regional Solicitor with assistance from the Deputy Regional Solicitor. 

Its work is divided among four counsels: Counsel for Wage and Hour; Counsel for ERISA, Civil 

Rights Counsel (who focuses on OFCCP and internal labor relations issues), and Counsel for 

OSHA. The Region has 35 lawyers and seven support staff.

Philadelphia

The Philadelphia Regional Office is responsible for most civil trial litigation and legal advice and 

support for DOL for matters arising in Delaware, Maryland, Pennsylvania, Virginia, West Virginia 

and Washington, D.C. The Region has a branch office is in Arlington, Virginia, and includes a 

separate group that focuses solely on work related to the MLBP.

Our attorneys litigate cases before the federal district courts in the states within our enforcement 

jurisdiction and administrative tribunals such as the Occupational Safety and Health Review 

Commission, the FMSHRC, and the Department’s Office of Administrative Law Judges. The 

Region partners closely with the Department’s enforcement agencies, such as OSAH, the Wage and 

Hour Division, MSHA, the OFCCP, and EBSA, as they conduct investigations of violations of the 

above-referenced statutes. Our attorneys also provide advice and assistance to these and other 

Departmental agencies in matters arising under more than 150 federal statutes and other laws.

The Region is headed by the Regional Solicitor in Philadelphia, with assistance from the Deputy 

Regional Solicitor. The Arlington office is managed by an Associate Regional Solicitor. The bulk 

of the litigation work is directly supervised by five counsels – one each for Wage Hour, OSHA, 

Civil Rights, ERISA, and MSHA/Black Lung – and the MLBP Projects Manager. The Region has 

38 attorneys and 12 support staff in its two offices, as well as nine attorneys and two support staff 

dedicated to the MLBP. 
TAB 1: Agency Organizational Overview

13

San Francisco

The San Francisco Regional Office is responsible for civil trial litigation and legal advice and 

support for DOL for matters arising in Alaska, America Samoa, Arizona. California, 

Commonwealth of the Northern Mariana Islands, Guam, Hawaii, Nevada, Idaho, Oregon, and 

Washington. The Region has branch offices in Los Angeles and Seattle.

The Region recommends and prosecutes litigation in federal district court and in administrative 

proceedings, supports and assists various DOL agencies with development of strategic enforcement 

cases, and prepares legal interpretations and opinions. The Region’s attorneys may be called upon 

to handle cases arising out of any of the DOL’s program areas..

The Region is headed by the Regional Solicitor in San Francisco, with assistance from the Deputy 

Regional Solicitor. The Los Angeles and Seattle offices are each managed by an Associate 

Regional Solicitor. There are four counsels in San Francisco supervising Civil Rights and ERISA, 

Labor Relations and Ethics, ERISA, and MSHA and OSHA respectively. Los Angeles has a Wage 

and Hour Counsel, and Seattle has a Whistleblower Counsel and an MSHA and OSHA counsel. 

The Region employs 38 attorneys and nine legal support staff.
TAB 1: Agency Organizational Overview

14

Workforce At-A-Glance
TAB 1: Agency Organizational Overview

15

Organizational Changes During the Past Eight Years

Loss of Regional Solicitor Position in 2011

Prior to 2012 the SOL regional structure consisted of eight regional offices headed by a senior 

executive service (SES) regional solicitor. The regional offices were located in Boston, New York, 

Philadelphia (with a branch office located in Arlington), Atlanta (with a branch office located in 

Nashville), Chicago (with a branch office located in Cleveland), Kansas City (with a branch office 

located in Denver), Dallas, and San Francisco (with branch offices located in Los Angeles and 

Seattle). In the fall of 2011, the Regional Solicitor in Kansas City retired. SOL was not given 

permission to fill the SES position in Kansas City and therefore, SOL was forced to restructure the 

Regional Offices to account for the loss of an SES position. The Kansas City Office became a 

branch office of the Chicago Regional Office and the Denver Office became a branch office of 

Dallas. This structure has remained in place to the present.

MSHA Litigation Backlog Project (MLBP)

Beginning in 2007 MSHA, SOL and the FMSHRC were faced with a rapidly growing number of 

pending contested cases. In 2010, the number of pending contested cases had sky-rocketed and 

there was growing concern about the effect on health and safety in the mines. In a 2010 

supplemental appropriation, Congress provided funds to the Department and the FMSHRC to 

reduce the backlog of contested cases. SOL, working with MSHA, developed the MLBP. The 

MLBP was designed as a temporary project and included the use of specialized litigation teams 

(with initially 89 term and temporary SOL employees (74 attorneys) who were hired in 2010-2011) 

to staff the MLBP and provide legal advice, conduct litigation and participate in global settlements 

to resolve some cases. These SOL employees worked hand-in-hand with MSHA technical advisors 

who provided expert mining knowledge concerning issues raised in the cases, and case settlement 

authority for MSHA to resolve the “targeted backlog.” Temporary MLBP offices were set up in 

Philadelphia, Arlington, Atlanta, Nashville, and Denver. In 2012, Congress allowed the use of 

appropriated funds to continue the needed work. In 2013, due to sequestration budget cuts and a 

decrease in the “targeted backlog” and the pending contested cases, two of the five SOL MLBP 

offices were closed and the number of term and temporary SOL full time employees associated 

with the project was cut to 44. SOL currently has 39 full time employees devoted to the MLBP.

Under a work load agreement that was signed in 2008, contested cases under the Mine Safety and 

Health Act are allocated generally between SOL and MSHA. SOL handles the most complex and 

difficult cases and those with novel legal issues, while MSHA, through its Conference and 

Litigation Representative (CLR) program attempts to resolve the more routine contested citations 

and penalties. The “targeted backlog” handled by the MLBP staff consisted primarily of the cases 

assigned to MSHA and CLRs. As the MLBP staff resolved the cases in the targeted backlog, an 

agreement was reached between SOL and MSHA to transfer additional CLR cases to the MLBP. 

Since 2012, approximately 2000 to 3000 cases a year have been transferred from MSHA to the 

MLBP to handle. As of July 31, 2016 there were 2086 pending contested cases assigned to SOL. 

The number of pending contested citations has dropped from a high of 88,757 at the end of 2010 to 

14,848 as of July 31, 2016. 
TAB 2: 30/60/90 Days – State of Play

16

Key Agency Stakeholders

Office of the Solicitor General (SG) – Department of Justice.

The SG must approve most amicus briefs filed by DOL in the federal courts of appeals. The SG 

usually files briefs himself or herself in the Supreme Court with varying amounts of DOL 

assistance.

Continuing legal education (CLE) providers

CLE providers ask SOL officials to speak at events about the state of play at DOL. Such providers 

include The American Bar Association, including the Labor and Employment Section (and the 

Occupational Safety and Health Law Committee); the National Employment Lawyers Association 

and its state affiliates, which represents plaintiff’s employment lawyers; the AFL-CIO Lawyers

Coordinating Committee; the Practicing Law Institute; and the labor and employment bar –

attorneys representing employees, management, unions and others, who, sometimes represented by 

the CLE groups mentioned above, request the Department’s participation as amicus curiae in 

litigation. 
TAB 3: Initiatives

17

TAB 3: INITIATIVES

Policy and Regulatory Issues 

The following text describes key SOL initiatives implemented during this administration that cut 

across the various program areas or clients.

“Early and Often”

Over the past seven years, SOL has emphasized proactive investigative assistance to its client 

agencies. The goal is for SOL to become involved with the enforcement activities of its clients at 

the earliest stages of their investigations and remain so throughout the life of the matter.

Early involvement is necessary to ensure that investigations are planned and conduced in a manner 

consistent with Department–wide enforcement goals, and – crucially – that evidence is collected to 

allow for subsequent litigation should it arise As workplaces change in the 21st century, legal 

theories supporting enforcement must evolve correspondingly, which in turn requires new types of 

evidence. SOL thus has an important role to play in pre-litigation investigations.

Both Regional Solicitors and Associate Solicitors meet with their client agencies on a regular basis 

to discuss the clients’ significant investigations and strategic priorities. Coordination extends to 

specific investigations, as SOL attorneys may collaborate on investigative plans, attend and 

participate in witness interviews, draft evidence-sharing agreements with enforcement partners, 

prepare warrant applications, handle issues related to expert witnesses, and conduct negotiations 

and settlement discussions. 

Enterprise-wide Enforcement

Traditionally most of the Department’s worker protection agencies have used the “one-workplaceat-a-time” model of enforcement, which limits remedies to the specific workplace inspected. This 

approach can be inefficient because relief for other similar, or even identical, violations by the same 

employer at additional worksites requires separate inspections and potentially separate 

administrative or legal proceedings. Thus, where violations or hazardous conditions at one 

worksite arise from an enterprise-wide policy or practice – or absence of a policy or practice –

enterprise-wide enforcement may save resources and achieve better compliance.

Enhanced Compliance Agreements

As part of both the “early and often” initiative and in keeping with the enterprise-wide enforcement 

theme, SOL has worked with client agencies to negotiate enhanced compliance agreements in 

appropriate cases. Enhanced compliance agreements contain relief that is beyond the scope of the 

alleged violation as a way to effect wider compliance in the company, an industry or geographic 

location

Criminal Referrals and Coordination with Law Enforcement

A number laws enforced civilly by DOL also include criminal provisions, and SOL has traditionally 

referred cases to the Department of Justice for criminal prosecution in instances of severe 

misconduct – usually involving fatalities related to willful violations of the OHS Act or Mine Act. 

Over the past seven years, however, SOL has sought to step-up criminal enforcement of worker 
TAB 3: Initiatives

18

protection laws by making more frequent referrals to the Department of Justice and expanding the 

types of cases referred

SOL attorneys, working with their client agencies, are encouraged to consider criminal referrals not 

only when and employee dies or is seriously injured as a result of the violation of DOL-enforced 

law, but also in cases where an employer’s conduct is by itself egregious – for example in instances 

of repeated violations or the coercion of workers – as well as those cases where an employer 

deliberately obstructs DOL’s investigation

In 2015, the DOL and the Department of Justice entered into a new memorandum of understanding 

(MOU) to facilitate referrals involving workplace safety issues. The MOU establishes points of 

contact in both departments for coordinating with respect to criminal violations of the OSH Act, 

Mine Act, and MSPA, and formalizes a process for referrals. It also provides for joint departmental 

training, as well as information and data sharing about ongoing cases. Under the MOU the 

responsibilities for criminal referrals under these DOL statutes is now the responsibility of the 

Department of Justice Environmental Crimes Section.

“Retaliation”

The Department is charged with administrating and enforcing numerous whistleblower provisions, 

related to both otherwise DOL-administered and non-DOL-administered statutes. These 

protections, sometimes also known as “anti-retaliation” or “anti-discrimination” provisions, are core 

pieces of their respective statutory schemes because they allow employees to report violations of 

law and cooperate with government investigations without fear of retaliation by their employers. 

For these reasons, SOL, along with the client agencies have aggressively pursued retaliation claims 

under the OSH Act and the FLSA during this administration. For example, the Department secured 

a consent judgment for nearly $1 million in back wages and liquidated, consequential, and punitive 

damages against a Boston-area animal-hide wholesaler and its owner, in part, for firing 10 workers 

who cooperated with Wage and Hour Division investigators. In another recent case, DOL obtained 

a consent judgement totaling more than $121 thousand for employees of a New York baby-apparel 

manufacturer, who faced retaliation for cooperating with an investigation into other FLSA 

violations.

“Misclassification of Employees as Independent Contractors”

Over the past several years, SOL has engaged in an initiative to combat employers’ increasing 

willingness to misclassify their employees as “independent contractors” in an effort avoid overtime, 

minimum wage, unemployment insurance, workers compensation, and other obligations. SOL has 

stepped-up enforcement, established positive judicial precedent, and secured back wages for 

numerous misclassified employees, including nurses, janitors, security guards, printers, construction 

workers, and even restaurant line cooks and dishwashers. With new and more complicated work 

arrangements – often involving contracting and sub-contracting – becoming more prevalent, and 

because of the large role courts play in determining misclassification, SOL expects that it will need 

to maintain focus on misclassification for the foreseeable future. 

Amicus Program

SOL has an active amicus program. Its divisions often identify amicus opportunities independent 

of their clients, and SOL is sometimes asked directly by the courts for the Department’s views on 

an issue sub judice. An amicus brief is filed, usually with a federal court of appeals or the U.S. 
TAB 3: Initiatives

19

Supreme Court, to provide the Department’s views on a particular priority legal issue. Divisions 

build amicus work into their operating plans. Nearly all amicus briefs are submitted in conjunction 

and consultation with the Solicitor General’s Office at the U.S. Department of Justice

Management 

SOL devotes significant time and resources to maintaining a satisfied and engaged workforce. 

Based on employee feedback, including the results of the annual Employee Viewpoint Surveys 

(EVS), the results of this effort have been positive. In response to the FY2016 EVS, SOL 

employees reported increased satisfaction with their jobs, pay, and organization for the fourth 

consecutive year. Over 78% of employees responded that they would recommend SOL as a good 

place to work. This appears to be a message SOL employees want to send as their response rate to 

the EVS has consistently outstripped that of Federal Government overall, and even that of the 

Department of Labor.

SOL is not resting on its laurels, however. For FY2017, it will continue to prioritize managementemployee communication through additional “town hall” meetings, regional conferences, and 

division and regional staff meetings. SOL also continues to emphasize training, holding supervisor 

training conferences and administering an “Attorney Leadership Development Program” for staff. 

Finally, SOL continues to strive to create positive incentives for its employees. Four awards – three 

for attorneys and one for support staff – are given annually to employees in recognition for 

outstanding work, and SOL continues its program of annual attorney promotions to GS 15 

paygrade.
TAB 4: Budget

20

TAB 4: BUDGET

BUDGET AUTHORITY AND FTE SUMMARY

(Dollars in millions)

FY 2013

Enacted

FY 2014

Enacted

FY 2015

Enacted

FY 2016

Enacted

FY 2017

Request

Budget Authority $129.9 $132.7 $133.8 $132.8 $148.8

FTE 693 664 646 649 705

At-A-Glance

• SOL is funded through three direct sources: the Departmental Management general fund, 

the Black Lung Disability Trust Fund (BLDTF) and the Unemployment Trust Fund (UTF). 

The general fund is the largest funding. In FY 2016, SOL was appropriated $125.0 million 

from this fund, $7.5 million from the BLDTF, and $0.3 million from the UTF. The head 

table and subsequent graphs reflect SOL’s direct funding and their reflected FTE. 

• In addition to its direct funding, SOL provides legal services to client agencies through 

reimbursable agreements. In FY 2016, SOL had a reimbursable authority of $14.2 million. 

This authority was supported by agreements with the Office of Workers’ Compensation 

Programs and the Wage and Hour Division. 

Budget and FTE Trends

• SOL’s direct budget authority has risen from $105.4 million in FY 2009 to $132.8 million in 

FY 2016. The largest increase in enacted budget authority came in FY 2010, when their 

budget authority rose by $19.9 million. In the report language in FY 2010, the House 

committee stated the increase was intended to provide resources for SOL to hire at least 60 

new personnel and increase resolution of pending litigation and regulatory issues, and the 

Committee expressed its expectation that this funding would be annualized in future 

appropriations to ensure SOL “has adequate legal staff to support the Department’s 

reinvigorated enforcement agenda.” 

• SOL’s general fund appropriation increased by $10.0 million in FY 2012. The report 

language specified that the increase was included to support legal services related to the 

FMSHRC. This work was previously supported by a supplemental appropriation to SOL 

and MSHA. 

• The increased budget authority has enabled the agency to support 649 authorized FTE in FY 

2016 in comparison to an authorized level of 597 in FY 2009.

• Over the FY 2009-FY 2016 time period, however, the agencies to which SOL provides legal 

services also had budget increases. The general fund budget authority for worker protection 

agencies increased by 16 percent, increasing the amount of legal services those client 

agencies required. 

• In addition to their full year appropriations, SOL received two major supplemental 

appropriations between FY 2009 and FY 2016. In FY 2009, SOL received a total of $3.3 

million, which supported 22 FTE, from the American Recovery and Reinvestment Act 

(ARRA) supplemental appropriation to provide legal services related to ARRA 

implantation. 
TAB 4: Budget

21 

• In FY 2010, SOL received $10.9 million as a supplemental appropriation for legal services 

related to the Department of Labor's caseload before the FMSHRC. MSHA received an 

additional $7.5 million to support these efforts as well. 

Upcoming Issues

•

 

FY 2009 FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015 FY 2016 FY 2017

PB

Request $108.2 $125.2 $130.4 $140.7 $139.1 $135.9 $140.1 $148.0 $148.8

Enacted $105.4 $125.2 $125.1 $137.0 $129.9 $132.7 $133.8 $132.8

$0

$20

$40

$60

$80

$100

$120

$140

$160

SOL

Request vs. Enacted, FY 2009-FY 2016

(Dollars in millions)

(b) (5)
TAB 4: Budget

22

FY 2009 FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015 FY 2016

Enacted $105.4 $125.2 $125.1 $137.0 $129.9 $132.7 $133.8 $132.8

Inflation Adjusted $105.4 $107.1 $110.5 $112.8 $114.4 $116.3 $116.4 $116.4

$0

$20

$40

$60

$80

$100

$120

$140

$160

SOL

FY 2009 Inflation Adjusted BA vs. FY 2009-FY 2016 Enacted BA

(Dollars in millions)

FY 2009 FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015 FY 2016 FY 2017

PB

Authorized 597 636 642 711 693 674 661 649 705

Actuals 596 662 695 693 693 664 646 649

460

510

560

610

660

710

760

SOL

Authorized FTE vs. Actuals, FY 2009-2017
TAB 5: Agency Performance

23

TAB 5: AGENCY PERFORMANCE

SOL provides legal support to all agencies in the department. SOL does not have measures with 

targets but does track pre-litigation matters, litigation matters, opinion/advice matters and 

regulatory matters. Matters are anything for which SOL has a demonstrated responsibility for 

providing legal services and which is referred from any source for possible action. SOL is an 

agency which provides legal services to its clients – other DOL agencies – and as such, SOL does 

the work it is given. The trend towards more pre-litigation matters and fewer litigation matters may 

be the result of the Solicitor’s emphasis on proactive assistance by SOL in all phases of an 

enforcement investigation, also known as “early and often” intervention. 

3,319

2,918

3,463 3,222 3,380

2,968 2,702 2,905

2,487

2,914

0

500

1,000

1,500

2,000

2,500

3,000

3,500

4,000

FY 2011 FY 2012 FY 2013 FY 2014 FY 2015

Pre-Litigatation Matters

Pre-Litigation Matters Opened

Pre-Litigatation Matters

Concluded

18,719

15,006

11,068 10,043 9,908

16,718 16,529

18,200

12,031 12,279

0

5,000

10,000

15,000

20,000

FY 2011 FY 2012 FY 2013 FY 2014 FY 2015

Litigation Matters

Litigation Matters Opened

Litigation Matters Concluded
TAB 5: Agency Performance

24

Note: The FY2013 spike in Opinion/Advice Matters is due to a mass transfer of workers’ 

compensation cases from the U.S. Postal Service. You can see an uptick in concluded matters in 

the subsequent years and as FY16 comes to a close, nearly all the USPS matters that came in in 

FY2013 are closed.

Milestones, established largely around client agency priorities, are the focus of SOL’s performance 

management system. SOL collaborates with agencies to determine priorities and establish 

milestones.

8,451 7,752

19,212

9,101 8,980

6,298

16,273

5,535

9,325

10,945

0

5,000

10,000

15,000

20,000

25,000

FY 2011 FY 2012 FY 2013 FY 2014 FY 2015

Opinion/Advice Matters 

Opinion/Advice Matters Opened

Opinion/Advice Matters

Concluded

90

78

55 58

49

67

52

66

49 49

0

20

40

60

80

100

FY 2011 FY 2012 FY 2013 FY 2014 FY 2015

Regulatory Matters 

Regulatory Matters Opened

Regulatory Matters Concluded
TAB 5: Agency Performance

25

FY 2015 Milestone Status

Completed (125)

Delayed due to regulatory agenda

or legislation (7)

Delayed due to client or external

action (17)

In progress/did not meet deadline

(1)

Canceled (1)
TAB 6: Significant Cases

26

TAB 6: SIGNIFICANT CASES

This document is organized by Department of Labor agency, and then statute/program/sub program, 

and then in the following order:

• Supreme Court

• U.S. Courts of Appeal in order by Circuit Number (non-number circuits (e.g. D.C.) will be 

listed first)

• U.S. District Courts

• Administrative Bodies

o Administrative Review Board

o DOL Office of Administrative Law Judges

o OSH/Federal Mine Safety and Health Review Commission

o OSH/Federal Mine Safety and Health Review Commission Administrative Law 

Judge

• Other

In a Supreme Court, U.S. Court of Appeals, or district court case, if Perez or Department of Labor 

is in the case name, then that likely means that the Department is a party to the lawsuit. If Perez or 

Department of Labor is not in the name, then likely we are participating as amicus (“friend of the 

court”) and have submitted (either on our own or because the Court asked us to) a brief explaining 

the Department of Labor position on the matter. 

Employee Benefit Security Administration

ERISA

Case Name: McCullough v. United Healthcare

Venue: Second Circuit

Issue: Whether ERISA preempts state law claims by service providers alleging promissory 

estoppel by out-of-network providers based on an insurer's misrepresentation about 

its coverage of a patient and participant in an ERISA plan.

Case Name: Osberg v. Foot Locker

Venue: Second Circuit

Issue: (1) Whether the district court correctly concluded that plaintiffs' claims for fiduciary 

breach violations were timely under ERISA's "fraud or concealment" provision; (2) 

Whether the participants were required to show that they detrimentally relied on 

Foot Locker's misrepresentations in order to establish that Foot Locker breached its 

fiduciary duties and to obtain class-wide relief in the form of reformation; (3) 

Whether the district court correctly found that the plaintiffs established that Foot 

Locker's misstatements caused them to have a mistaken understanding of how their 

benefits would accrue after the cash balance plan conversion.

Case Name: Solnin v. Sun Life

Venue: Second Circuit
TAB 6: Significant Cases

27

Issues: (1) Whether a claim for benefits under ERISA that has been remanded by a court to 

the claims administrator generally should be treated as an initial claim or an appeal 

of a denied claim under the ERISA claims regulations; (2) Whether the deadlines set 

forth in the ERISA claims regulations, 29 C.F.R. § 2560.503-1, apply when a court 

reverses a denial of benefits and sends the claim back to the administrator to 

reconsider a denied claim; (3) Whether the deadlines begin to run from the date the 

applicable order is filed.

Case Name: Fletcher v. Convergex

Venue: Second Circuit

Issue: Whether the district court improperly dismissed, for lack of constitutional standing, 

plaintiff's suit on behalf of himself and his retirement plan asserting that defendantfiduciaries violated ERISA by dealing with his retirement plan's assets in their own 

interests in order to earn hidden fees.

Case Name: Trujillo v. Landmark Media

Venue: Fourth Circuit

Issue: Whether a plan participant who makes a complaint during an internal audit of a plan 

is protected by ERISA section 510 from retaliation.

Case Name: Hitchcock v. Cumberland University

Venue: Sixth Circuit

Issue: Whether a plan participant must exhaust administrative remedies for a claim against 

plan sponsor and fiduciary for violating ERISA's anti-cutback provision.

Case Name: Thole v. U.S. Bank

Venue: Eighth Circuit

Issue: Whether a plan participant in a defined-benefits pension plan has Article III standing 

to sue fiduciaries for a fiduciary breach that caused the plan to be underfunded.

Case Name: Allen v. GreatBanc

Venue: Seventh Circuit

Issue: (1) Whether, under the pleading standards for cases concerning plan investments in 

publicly-traded stock set out by the Supreme Court in Fifth Third Bancorp v. 

Dudenhoeffer, 134 S. Ct. 2459 (2014), the participants were required to plead the 

existence of "special circumstances" that would have alerted their trustee, 

GreatBanc, to the fact that the price paid by the Personal-Touch Home Care, Inc. 

Employee Stock Ownership Plan for privately-held employer stock exceeded the 

stock's fair market value; (2) Whether, to survive a motion to dismiss on their 

prohibited-transaction claim under ERISA section 406(a), 29 U.S.C. § 1106(a), 

plaintiffs were required not only to allege a transaction proscribed by section 406(a), 

but also to allege facts showing that the transaction was not exempt under the 

"adequate consideration" exemption in ERISA section 408(e), 29 U.S.C. § 1108(e).

Case Name: In re Lorna Clause

Venue: Eighth Circuit
TAB 6: Significant Cases

28

Issue: Whether ERISA invalidates a welfare plan's forum-selection clause that deprives the 

petitioner-participant of the venue choices afforded by ERISA's venue provision, and 

instead requires her to bring suit at a considerable distance from her home.

Case Name: John J. Koresko v. Perez

Venue: Third Circuit

Issue: Whether the court-erred in finding Appellant in contempt of court his failure of 

comply with earlier order mandating cooperation with court-appointed independent 

fiduciary and transfer of millions of dollars of plan assets and control of plan assets 

to independent fiduciary.

Case Name: Tatum v. RJ Reynolds

Venue: Fourth Circuit

Issue: Whether the correct test for determining loss causation once a plan participant has 

shown that a fiduciary breached its duties of prudence by failing to investigate the 

merits of a plan investment is whether the breaching fiduciary showed that a prudent 

fiduciary would have made the same decision after investigating the matter.

Case Name: Perez v. First Bankers Trust Services, Inc. 

Venue: U.S. District Court for the Southern District of New York

Issue: Whether MagnaCare, First Bankers, as trustee of the Maran, Inc. ESOP, caused the 

ESOP to buy Maran stock from the company’s principals for more than adequate 

consideration, specifically, by overpaying by approximately $40 million. The 

Secretary alleges that First Bankers caused the overpayment by failing prudently to 

investigate the value of Maran prior to the transaction, and in so doing violated its 

fiduciary duties and caused a prohibited transaction. 

Case Name: Perez v. MagnaCare Administrative Services, LLC, et al. 

Venue: U.S. District Court for the Southern District of New York

Issue: Whether MagnaCare failed to disclose to its health plan clients its fees for certain 

services and whether it improperly adjudicated emergency room claims and claims 

for which third parties may be liable. MagnaCare provides ERISA-governed health 

plans with access to its network of health care providers, facilities, and ancillary 

medical service providers and also offers third-party administration services such as 

claims adjudication and processing. The Secretary alleges that MagnaCare violated 

ERISA by unilaterally setting and failing to disclose its network management fees 

and that it violated ERISA, the Affordable Care Act, and the Department's claims 

procedures regulation by failing to properly adjudicate claims. 

Case Name: Perez v. Mueller

Venue: U.S. District Court for the Eastern District of Wisconsin

Issue: Whether fiduciaries of the Omni Resources, Inc. ESOP including the selling 

shareholders and the independent fiduciary Alpha Consulting, Inc. violated ERISA 

sections 404 and 406 by causing the Plan to pay more than adequate consideration 

for Omni stock. The ESOP purchased 100% of the outstanding shares and paid far 

more than fair market value for the stock. The Secretary alleges that the ESOP 

fiduciaries caused the overpayment by using a four month old valuation that failed to 
TAB 6: Significant Cases

29

consider updated financial information, current market conditions and the loss of a 

major company client.

Case Name: Secretary v. TPP Holdings, Inc.

Venue: U.S. District Court for the Northern District of Georgia, and if granted, Eleventh 

Circuit 

Issue: Whether the six-year statute of limitations under ERISA is in fact a statue of repose 

that cannot be equitably tolled. (Almost simultaneously, the Southern District of 

Florida found a similar tolling agreement enforceable.) 

Case Name: Perez v. John J. Koresko, et al.

Venue: U.S. District Court for the Eastern District of Pennsylvania

Issue: The court’s judgment, which has been upheld on appeal to the Third Circuit, 

confirmed Koresko’s ERISA liability for improperly diverting and misusing plan 

assets in multiple employer death benefit arrangement. The two primary issues 

currently before the court are whether Koresko remains in contempt and should 

continue to be incarcerated, and the method that the independent fiduciary should 

use to distribute the existing plan assets. 

Case Name: Perez v. BAT Masonry, et al. 

Venue: U.S. District Court for the Western District of Virginia

Issue: Whether Defendants breached ERISA by permitting an ESOP that purchased 

employer stock to pay several million dollars more than the actual value of that 

stock, whether further breaches were committed when the selling shareholder 

continued drawing cash out of the company via the ESOP following the ESOP 

transaction, and whether a successor to the ESOP-owned company is also liable for 

some of these breaches. 

Case Name: Perez v. Chimes District of Columbia, Inc., et al.

Venue: U.S. District Court for the District of Maryland

Issue: Whether defendants breached ERISA when a health plan paid millions of dollars in 

excessive expenses, the third party administrator failed to adequately administer the 

plan and received undisclosed compensation from other service providers, and the 

third party administrator and another service provider paid kickbacks to the plan 

sponsor as an inducement to retain them. 

Case Name: Perez v. Sentry Equipment Erectors, Inc., et al.

Venue: U.S. District Court for the Western District of Virginia

Issue: Whether defendants breached ERISA because: 1) the Sentry ESOP purchased 52% 

of the company’s stock for over $6,000,000 more than the fair market value of that 

stock; and 2) the 42% of Sentry stock already held in the ESOP was immediately 

devalued when the ESOP purchased that remaining 52% of the stock and no 

protection was given to the existing ESOP participants.

Case Name: Perez v. Cactus Feeders, Inc ESOP

Venue: United States District Court, Northern District of Texas
TAB 6: Significant Cases

30

Issue: Whether the fiduciaries violated its fiduciary duties when it caused the ESOP to pay 

$100 million for the remaining 70% of the company stock without requiring 

sufficient adjustments in that purchase price due to limitations in the sale regarding 

marketability, control, and dilution of the stock from warrants and options.

Case Name: Perez v. First Bankers Trust Services (SJP ESOP)

Venue: U.S. District Court for the District of New Jersey

Issue: Whether the defendant First Bankers’ Trust Services allowed the SJP Employee 

Stock Ownership Plan to pay an excessive transaction price to the selling 

shareholder of the sponsoring company.

Case Name: Perez v. First Bankers Trust Services (Rembar ESOP)

Venue: U.S. District Court for the Southern District of New York

Issue: Whether the defendant First Bankers’ Trust Services allowed the Rembar Employee 

Stock Ownership Plan to pay an excessive transaction price to the selling 

shareholder of the sponsoring company.

Case Name: Perez v. Ginsberg et al. (Laser and Skin Surgery Center of NY ESOP)

Venue: U.S. District Court for the Southern District of New York

Issue: Whether the defendant fiduciaries and selling shareholder allowed the subject 

Employee Stock Ownership Plan to pay an excessive transaction price to the selling 

shareholder of the sponsoring company.

Case Name: Perez v. Doyle, et al. (PITWU)

Venue: U.S. District Court for the District of New Jersey

Issue: The case has been remanded so that the District Court can make additional findings 

regarding the date on which Defendant Cynthia Holloway should have been on 

notice regarding the breaches of her co-fiduciaries operating a multi-employer 

welfare arrangement (MEWA) servicing many employee welfare benefit plans. 

Case Name: Department of Labor v. White Mountain Apache Tribe Retirement Plan

Venue: DOL Office of Administrative Law Judges

Issue: Whether a benefit plan sponsored by an Indian Tribal Government was a 

governmental plan not covered by ERISA and, hence, not subject to ERISA’s annual 

auditing and reporting requirements and penalties for failure to comply with those 

requirements, and whether Executive Order 13175 and the Tribal Consultation 

Policy create any enforceable right, substantive or procedural, in favor of the 

defendant plan when the Tribal Consultation Policy specifically states that 

“enforcement policy, planning, investigations, cases and proceedings are not 

appropriate subjects for consultation.”

Mine Safety and Health Administration

Mine Safety and Health Act

Case Name: Small Mine Development v. Secretary of Labor, et al. 

Venue: D.C. Circuit
TAB 6: Significant Cases

31

Issue: Whether the Commission was correct in holding that an MSHA safety standard 

requiring operators of underground metal/nonmetal mines to provide miners with a 

method of refuge if only one escapeway exists applies when the operator is only 

engaged in exploration or development. This issue presents an interpretive question 

of first impression.

Case Name: Maxxim Rebuild Co. v. Secretary of Labor, et al. 

Venue: 6th Circuit

Issue: Whether the Commission was correct in finding that MSHA has jurisdiction over a 

shop that performs rebuild and fabrication work on mining equipment used at 

various mines. 

Case Name: Hopkins County Coal, LLC v. Secretary of Labor, et al.

Venue: 6th Circuit

Issue: Whether the Commission was correct in finding that the mine operator violated 

Section 103(h) of the Mine Act by refusing to provide MSHA with the personnel 

files of employees who were disciplined for purportedly engaging in certain 

misconduct. MSHA requested the information as part of its investigation of a 

complaint alleging that a miner was discharged for engaging in protected safety 

activity, and requested the information for the purpose of determining whether that 

miner was treated differently than other miners who purportedly engaged in similar 

misconduct.

Case Name: Secretary of Labor v. FMSHRC (American Coal Co.)

Venue: D.C. Circuit

Issue: Whether the ALJ erred in refusing to approve a settlement agreement submitted by 

MSHA and settling 32 citations on the basis of an across-the-board penalty reduction 

of 30 percent. The issue implicates a fundamental statutory question of the legal 

standard by which the Commission should review settlement agreements entered 

into by MSHA. In the Commission’s view, the standard of review is broad; in 

MSHA’s view, the standard of review is narrow. The United Mine Workers has 

asked to participate as an intervenor.

Case Name: Pocahontas Coal Co., LLC 

Venue: Federal Mine Safety and Health Review Commission

Issue: Whether the ALJ was correct in upholding the POV notice MSHA issued to the 

operator. This case involves a challenge by a mine operator to an application of the 

Pattern of Violations (“POV”) Rule promulgated by MSHA in 2013. The operator 

argues (1) that MSHA failed to establish a nexus between the two POV categories 

identified in the notice and accidents and injuries at the mine; (2) that MSHA acted 

impermissibly by applying the POV screening criteria as a binding norm; (3) that 

MSHA applied the POV sanction in an arbitrary and capricious manner; and (4) that 

MSHA acted impermissibly by applying the POV sanction retroactively. 

Case Name: Secretary v. Austin Powder Company

Venue: Administrative Law Judge, Federal Mine Safety and Health Review Commission
TAB 6: Significant Cases

32

Issue: The ALJ’s interlocutory order of March 10, 2016 sustained MSHA’s determination 

that Austin Powder and its regional subsidiaries constitute a “unitary operator,” so 

that Austin Powder can be cited as a single entity for Mine Act violations and 

penalties. The ALJ has since ordered the parties to mediation before a Commission 

settlement official to discuss the merits of the citations and penalties. Once the 

parties agree on the citations and penalties, we anticipate the judge will issue a final 

order. We expect Austin Powder to appeal the “unitary operator” finding to the 

Commission.

Case Name: Secretary v. Doe Run Company

Venue: Administrative Law Judge, Federal Mine Safety and Health Review Commission

Issue: 1) Whether the mine provided secondary escapeways in each of five lead-zinc ore 

mines from the lowest level of each mine; 2) whether MSHA’s 2007 vacatur of a 

similar violation at these mines precludes MSHA from now enforcing the secondary 

escapeway standard at these mines.

Case Name: Secretary v. B & S Industrial Contractors

Venue: Federal Mine Safety and Health Review Commission Administrative Law Judge 

Issue: Whether special remedies such as emotional distress and punitive damages are 

available in whistleblower cases under section 105(c) of the MSH Act.

Case Name: Secretary v. N.J. Wilbanks

Venue: Federal Mine Safety and Health Review Commission Administrative Law Judge 

Issue: Whether MSHA has jurisdiction over a subcontractor working at a site that was part 

of an existing mine, even though there was no mining activity at the time of the 

inspection.

Case Name: Secretary v. Cemex

Venue: Federal Mine Safety and Health Review Commission Administrative Law Judge 

Issue: Whether the mine operator flagrantly failed to conduct a workplace examination of 

elevator cars and landings after a miner plunged to his death down an elevator shaft.

Case Name: Secretary v. Armstrong Coal

Venue: Federal Mine Safety and Health Review Commission Administrative Law Judge 

Issue: Whether a mine operator—which has routinely been found to discriminate against 

miners and miners’ representatives—interfered with the rights of two miners 

representatives when they were excluded from a portion of a closing conference 

following a mine inspection.

Case Name: Secretary and Knisell v. Cumberland Coal Resources

Venue: Federal Mine Safety and Health Review Commission Administrative Law Judge

Issue: Whether an Accident Intervention Program which imposes various levels of 

intervention, including counseling and discipline, for reported “avoidable” accidents 

interferes with miners’ right to report accidents and therefore constitutes interference 

with protected rights under Section 105(c) of the Mine Act.

Case Name: Secretary and Hayes v. Marion County Coal/Murray Energy Corporation
TAB 6: Significant Cases

33

Venue: Federal Mine Safety and Health Review Commission Administrative Law Judge

Issue: Whether a meeting in which a mine foreman told assembled miners that the mine 

could shut down if miners continued to notify MSHA of violations and told them to 

notify the operator of such violations before contacting MSHA, interferes with 

miners’ rights to report safety concerns to MSHA and therefore constitutes 

interference with protected rights under Section 105(c) of the Mine Act. One month 

prior to this meeting, a Federal Mine Safety and Health Review Commission 

Administrative Law Judge issued a Decision and Order holding that similar 

“awareness” meetings conducted at this mine, among other Murray Energy-owned 

mines, constituted illegal interference and ordered Respondents to cease and desist. 

Case Name: Secretary v. Consolidation Coal Company, WEVA 2015-632

Venue: Federal Mine Safety and Health Review Commission Administrative Law Judge

Issue: Whether extensive accumulations of coal fines and float coal dust along a conveyor 

belt, with broken rollers, rollers turning in coal fines, and misaligned belt rubbing 

bottom roller cradles, meet the Act’s requirements for a Flagrant violation.

Case Name: Doe Run Company

Venue: Federal Mine Safety and Health Review Commission Administrative Law Judge 

Issue: Whether the operator violated §57.11050(a) when it failed to provide two 

escapeways from “the lowest levels” in the mine. MSHA found 24 separate violates 

of this provision in the mine. At the judge’s instructions, the operator filed a 

summary judgment brief addressing the issue of whether the withdrawal of similar 

citations issued in 2007 was a settlement agreement which allowed the operator to 

use DPOSs in lieu of driving a secondary escapeway. On June 10, 2016, the ALJ 

denied the Motion For Summary Judgment citing issues of material fact that required 

a hearing. 

Case Name: Secretary v. North American Quarry and Construction Services, LLC

Venue: Federal Mine Safety and Health Review Commission Administrative Law Judge

Issue: Whether North American Quarry & Construction, Inc. failed to train a deceased 

miner to safely use an electric crawler drill and engaged in aggravated conduct when 

it assigned him to work alone on the drill.

Case Name: Secretary v. Gibraltar Rock Belle Mead, Inc.

Venue: Federal Mine Safety and Health Review Commission Administrative Law Judge

Issue: Whether Gibraltar Rock Belle Mead, Inc. failed to examine and correct dangerous 

ground conditions at its mine thereby exposing a contract employee to serious 

injuries when approximately 15 tons of rock fell from a highwall and entered the cab 

of his front end loader.

Case Name: Secretary v. Silver Valley Drilling & Blasting, Inc.

Venue: Federal Mine Safety and Health Review Commission Administrative Law Judge

Issue: Whether Silver Valley Drilling & Blasting, Inc. failed to examine and correct 

dangerous ground conditions at Gibraltar Rock Belle Mead, Inc. before assigning its 

employee to work there, thereby exposing him to serious injuries when 
TAB 6: Significant Cases

34

approximately 15 tons of rock fell from a highwall and entered the cab of his front 

end loader. 

MSHA 105(c) - Retaliation

Case Name: Secretary o/b/o Pappas v. CalPortland Co. & Riverside Cement

Venue: Federal Mine Safety and Health Review Commission Administrative Law Judge

Status: Set for trial to begin December 6, 2016

Issue: Whether CalPortland refused to hire a miner in retaliation for the miner filing a 

discrimination complaint against a previous employer.

Occupational Safety and Health Administration

Rule and Guidance Challenges

Case Name: Agricultural Retailers Association v. OSHA

Venue: D.C. Circuit

Issue: Whether the memo constitutes a “modification” to that standard and would therefore 

have been require to pass through notice and comment rulemaking prior to 

promulgation.

Case Name: Challenges to Silica Rulemaking

Venue: D.C. Circuit

Issue: Eight petitions for review have been filed challenging OSHA’s Final Rule on 

Occupational Exposure to Respirable Crystalline Silica, which was published on 

March 25, 2016. The rule reduced the amount of silica dust, which increases the risk 

of developing serious and often deadly silica-related diseases, which workers can be 

exposed to on the job. 

Occupational Safety and Health Act

Case Name: Mar-Jac Poultry

Venue: U.S. District Court for the Northern District of Georgia

Issue: Whether OSHA’s attempt to expand an unprogrammed inspection to include 

additional hazards set out in a Regional Emphasis Program (REP) for poultry 

processors violates the Fourth Amendment.

Case Name: U.S. v. DNRB/Fast Track Erectors 

Venue: U.S. District Court Western District of Missouri

Issue: Whether the employer violated Section 666(e) of the Act when it committed a 

willful violation of the Acts fall protection provisions which lead to the death of an 

employee who fell in excess of 30 feet while doing steel erection without fall 

protection.

Case Name: PrimeFlight Aviation

Venue: Occupational Safety and Health Review Commission
TAB 6: Significant Cases

35

Issue: Whether the bloodborne pathogen standard applies to workers who clean airplanes at 

Newark and LaGuardia Airports and have sustained needlesticks while cleaning 

passenger seating areas.

Case Name: FJC Security

Venue: Occupational Safety and Health Review Commission

Issue: Whether a workplace violence citation under the general duty clause can be 

sustained against a security guard company operating under contract restrictions 

imposed by the Federal Protective Service to protect a federal building.

Case Name: Environmental Remediation Services, Inc. (ERSI)

Venue: Occupational Safety and Health Review Commission

Issue: Whether a general duty clause violation can be affirmed where workers are exposed 

to lead at levels below the permissible exposure limit (PEL) and workers are 

showing serious adverse health effects.

Case Name: Lloyd Industries

Venue: Occupational Safety and Health Review Commission Administrative Law Judge

Issue: Willful/egregious machine guarding and noise monitoring violations; $816,000 in 

proposed penalties.

Case Name: AndVenture

Venue: Occupational Safety and Health Review Commission Administrative Law Judge

. 

Issue: Willful general duty clause violation for workplace violence regarding at-home 

caregivers; one caregiver was raped by a client’s father.

Case Name: PhotogenX

Venue: Occupational Safety and Health Review Commission Administrative Law Judge

Issue: Willful citation items for unsafe storage of flammable liquids; $285,300 in proposed 

penalties.

Case Name: Secretary v. Sunfield 

Venue: Occupational Safety and Health Review Commission Administrative Law Judge 

Issue: Whether the company committed multiple egregious willful violations at its motor 

vehicle metal parts stamping operation, and if so, whether approximately $3.4 

million in penalties arising out of these violations should be sustained.

Case Name: Secretary v. Aldridge Electric, Inc. 

Venue: Occupational Safety and Health Review Commission Administrative Law Judge 

Issue: Whether an electrical contractor on a construction project committed a willful 

violation of section 5(a)(1) of the Act by failing to acclimatize employees for heat, 

resulting in the death of a 36 year old employee of Aldridge due to heat stroke on his 

first day on the job. 

Case Name: Secretary v. Case Farms 

Venue: Occupational Safety and Health Review Commission Administrative Law Judge 
TAB 6: Significant Cases

36

Issue: Whether this poultry processing company committed multiple willful, repeat and 

serious violations at its Ohio plants, and if so, whether approximately $2 million in 

penalties arising out of these violations should be sustained. 

Case Name: Secretary v. Integrated Life Choices, Inc. 

Venue: Occupational Safety and Health Review Commission Administrative Law Judge 

Issue: Whether the operator of a personal and professional services company committed a 

serious violation of section 5(a)(1) of the Act when it failed to ensure that its 

employees were adequately protected from workplace violence arising from working 

with individuals with developmental and intellectual disabilities.

Case Name: E I Dupont DE Nemours & Co Inc.

Venue: Occupational Safety and Health Review Commission Administrative Law Judge 

Issue: Whether DuPont willfully failed to maintain its process safety management 

program. One case addresses a quadruple fatality as a result of chemical leak. The 

second case was the result of an inspection under the Chemical NEP.

Case Name: Cotton Construction

Venue: Occupational Safety and Health Review Commission Administrative Law Judge 

Issue: Whether Cotton Construction willfully failed to provide fall protection to its 

employees which resulted in the serious injury of one worker.

Case Name: Challenge to OSHA’s Sallman Letter (National Federation of Independent Business 

v. Dougherty et al)

Venue: U.S. District Court for the Northern District of Texas 

Issue: Whether the Sallman Letter, a February 2013 letter OSHA issued regarding when 

workers at a non-union worksite can authorize a person affiliated with a union to act 

as their representative during an OSHA inspection, is invalid because it allegedly 

“substantially lowers the standard” set forth in 29 C.F.R. §§ 1903.3 for when a nonemployee can accompany an OSHA compliance officer on an inspection of a 

worksite.

Whistleblower Statutes including Section 11(c) of the OSH Act

Case Name: Metro-North Commuter R.R. v. DOL

Venue: Second Circuit

Issue: Whether the Federal Railroad Safety Act’s provision prohibiting railroad carriers 

from denying, delaying, or interfering with the medical treatment of employees who 

are injured during the course of employment applies beyond the period immediately 

following an injury. Whether the ARB correctly ruled that a mistaken evidentiary 

ruling by the ALJ was harmless error, and whether the ALJ’s award of punitive 

damages against Metro-North was appropriate.

Case Name: Smith v. DOL 

Venue: Fourth Circuit

Issue: Whether the ARB reasonably concluded that substantial evidence supports the ALJ’s 

finding that Smith’s employer (Intervenor Duke Energy Carolinas and Atlantic 
TAB 6: Significant Cases

37

Group) showed by clear and convincing evidence that they would have taken the 

same action if they had discovered Smith’s failure to promptly elevate to 

management a falsified firewatch log entry by means other than his protected 

reports. 

Case Name: Blackorby v. BNSF Ry. Co.

Venue: Eighth Circuit

Issue: Whether plaintiff-appellee (Blackorby) presented sufficient evidence at trial to (1) 

establish that his claimed protected activity was a “contributing factor” under 

Federal Railroad Safety Act thus supporting the district court’s denial of BNSF 

motion for judgment as a matter of law; and (2) that he suffered recoverable 

emotional-distress damages thus supporting the district court’s denial of BNSF’s 

motion for judgment as a matter of law; and (3) whether the district court committed 

reversible error warranting a new trial where (A) the court instructed the jury that 

Blackorby did not have to prove that BNSF intentionally discriminated against him, 

and (B) the court instructed the jury to award an amount to compensate Blackorby 

for any damages it found Blackorby sustained as a direct result of BNSF’s decision 

to discipline Blackorby.

Case Name: Mercier v. U.S. Department of Labor

Venue: Eighth Circuit

Issue: Whether the DOL ARB correctly affirmed the ALJ’s conclusion that Mercier failed 

to meet his burden to show by a preponderance of evidence that his protected 

activity contributed to Union Pacific’s decision to discharge him in violations of 

FRSA.

Case Name: Nelson v. SOL

Venue: Ninth Circuit

Issue: Whether substantial evidence in the record supports the DOL ARB order holding 

that Petitioner Nelson did not engage in protected activity under Energy 

Reorganization Act, and, even if he did, he failed to show that the conduct he alleged 

was protected constituted a contributing factor in the alleged adverse action.

Case Name: Cypress Semiconductor v. ARB

Venue: Tenth Circuit

Issue: Whether employee was retaliated against in violation of the Sarbanes-Oxley Act and 

relief and attorney fees were appropriately awarded.

Case Name: Abdur-Rahman v. U.S. Department of Labor

Venue: Eleventh Circuit

Issue: Whether the DOL ARB’s decision awarding attorneys fees to the complainants and 

against the county/employer under the Federal Water Pollution Control Act, should 

have been enhanced and should not have affirmed the ALJ’s taking notice of law 

firm economic surveys.

Case Name: DeKalb County v. U.S. Department of Labor 

Venue: Eleventh Circuit
TAB 6: Significant Cases

38

Issue: Whether the DOL ARB erred in this Federal Water Pollution Control Act case by 

reviewing the ALJ’s fact findings de novo, rather than for substantial evidence, and 

that complainants did not engage in protected activity as a matter of law because 

they did not allege any violation of environmental law but rather complained to their 

supervisor about matters which related to their job duties.

Case Name: Secretary v. AT&T, Southwestern Bell

Venue: U.S. District Court Western District of Missouri

Issue: Whether AT&T violated 11(c) of the OSH Act by instituting a policy which appears 

to penalize employees during performance appraisals for reporting workplace 

injuries. 

Case Name: Perez v. Lloyd Industries, Inc. and William P. Lloyd

Venue: U.S. District Court for the Eastern District of Pennsylvania

Issue: This discrimination Complaint alleges that two employees were terminated in 

retaliation for initiating an OSHA enforcement inspection and cooperating with 

OSHA.

Office of the Assistant Secretary for Administration and Management 

Freedom of Information Act 

Case Name: Landmark Legal Foundation v. DOL

Venue: U.S. District Court for the District of Columbia

Issue: Whether a FOIA request for records “evincing” the use of personal email by certain 

DOL officials to conduct agency business requires a search of the personal email 

accounts of the identified officials.

Office of Federal Contract Compliance Programs

Executive Order 11246 (Discrimination by Federal Contractors)

Case Name: OFCCP v Pilgrim’s Pride (Marshville, NC plant) 

Venue: DOL Office of the Administrative Law Judges and U.S. Bankruptcy Court 

Issue: Whether Pilgrim’s Pride violated Executive Order 11246 when it hired laborers and 

operators in a way that disfavored Black applicants and favored Hispanic applicants 

in its Marshville, NC, plant. Before the bankruptcy court is the issue of whether and 

to what extent is OFCCP precluded from proceeding against Pilgrim’s Pride by an 

earlier Chapter 11 bankruptcy.

Case Name: OFCCP v. WMS Solutions, Inc.

Venue: DOL Office of Administrative Law Judges

Issue: This is the first systemic discrimination case filed against a federal construction 

contractor. The Administrative Complaint alleges hiring discrimination against 

black, Asian and American Indian/Alaskan Native applicants; compensation 

discrimination against female, black and white laborers; and harassment against 

Hispanic employees. 
TAB 6: Significant Cases

39

Case Name: OFCCP v. Enterprise RAC Company of Baltimore, LLC

Venue: DOL Office of Administrative Law Judges

Issue: The Administrative Complaint alleges hiring discrimination against black applicants 

for the Management Trainee position. 

Case Name: OFCCP v. Potomac Abatement, Inc.

Venue: DOL Office of Administrative Law Judges

Issue: The Administrative Complaint alleges compensation discrimination against Hispanic 

laborers and Field Technicians, hiring discrimination against black laborers and 

Field Technicians, and harassment of Hispanic employees. 

Case Name: JBS Swift & Company E.A. Miller, Inc. (Hyrum, Utah)

Venue: DOL Office of Administrative Law Judges

Issue: Whether Swift discriminated against female applicants for entry-level laborer jobs 

from August 5, 2005, through September 30, 2006. The complaint also alleges that 

Swift discriminated against white, black, and Native American applicants for entrylevel laborer jobs from February 1, 2008, through June 30, 2009.We have obtained 

additional records for later periods during discovery and the discrimination periods 

may be extended forward.

Case Name: Pilgrim’s Pride Corporation (Mt. Pleasant, Texas)

Venue: DOL Office of Administrative Law Judges

Issue: Whether Pilgrim’s systematically discriminated against qualified black and white 

applicants for semi-skilled manual labor positions, and discriminated against white 

and female applicants for unskilled labor positions from July 20, 2005, through July 

20, 2007.

Case Name: JBS Swift &Co 

Venue: DOL Office of Administrative Law Judges

Issue: Whether Swift discriminated against American Indian, black, Hispanic, and white 

applicants, in favor of Asian applicants, for General Production jobs from at least 

September 26, 2007, through at least June 30, 2010.

Case Name: OFCCP v. B&H Foto and Electronics Corp.

Venue: DOL Office of Administrative Law Judges

Issues: Employer discriminated against blacks, Asians and women in hiring and against 

Hispanic workers in compensation and promotions, and perpetuated a hostile work 

environment for its Hispanic workers.

Case Name: OFCCP v. Palantir Technologies

Venue: DOL Office of Administrative Law Judges

Issue: The Administrative Complaint alleges hiring discrimination against Asian applicants 

in three job categories. Specifically, the Administrative Complaint alleges that 

Palantir’s heavy reliance on internal referrals and its other selection procedures 

favored White applicants. 
TAB 6: Significant Cases

40

Office of Workers’ Compensation Programs

Black Lung Benefits Act

Case Name: Helen Mining Co. v. Elliott 

Venue: Third Circuit

Issue: Whether the Department’s 2013 regulations implementing Section 411(c)(4) of the 

Black Lung Benefits Act, which provides a rebuttable presumption that certain 

totally disabled miners with more than 15 years of employment are entitled to 

federal black lung benefits, are a permissible interpretation of the statute.

Defense Base Act

Case Name: Chugach Management Services v. Jetnil 

Venue: Ninth Circuit

Issue: Whether the Defense Base Act’s zone of special danger doctrine, which provides 

compensation for overseas U.S. workers who are injured while engaging in 

foreseeable activities, also applies to foreign nationals.

Wage-Hour Division

Fair Labor Standards Act

Case Name: Saleem v. Corp. Transp. Group.

Venue: Second Circuit

Issue: Whether the district court erred in ruling that drivers of "black cars" were not 

entitled to the protections of the FLSA because they were independent contractors.

Case Name: Perez v. American Future Sys. d/b/a Progressive Bus. Pub.

Venue: Third Circuit

Issue: Whether rest breaks of twenty minutes or less must be compensated as hours 

worked, as set out in Wage and Hour regulations, 29 C.F.R. 785.18, and whether this 

regulation should be applied as a bright-line rule.

Case Name: Salinas v. Commercial Interiors, Inc.

Venue: Fourth Circuit

Issue: Whether the district court’s erred in ruling on summary judgment that the plaintiffs 

were not jointly employed under the FLSA by the contractor (Commercial Interiors, 

Inc.) that engaged the subcontractor.

Case Name: Navarro v. Encino Motorcars, LLC 

Venue: Ninth Circuit

Issue: The Supreme Court remanded the case on June 20, 2016 to the Ninth Circuit for a 

determination in the first instance of whether automobile dealership service advisors 

are exempt from the overtime provisions of the FLSA under section 13(b)(10)(a) of 

the Act that exempts “any salesman, partsman, or mechanic primarily engaged in 

selling or servicing automobiles, trucks, or farm implements, if he is employed by a 
TAB 6: Significant Cases

41

nonmanufacturing establishment primarily engaged in the business of selling such 

vehicles or implements to ultimate purchasers.” The Supreme Court refused to 

accord controlling Chevron deference to the Department's final rule of 2011 

indicating that service advisors were not exempt. 

Case Name: Williams v. Am. Blue Ribbon Holdings

Venue: Ninth Circuit 

Issue: Whether the district court erred by dismissing complaints filed by employees who 

alleged that their employers credited tips received from customers toward the FLSA 

minimum wages due for all of the employees’ hours worked even though the 

employees sometimes performed tasks unrelated to their tipped occupation and spent 

more than 20 percent of their work time performing tasks that were related to their 

tipped occupation but did not produce tips, where the court relied on case law from 

outside the tip credit context rather than the Secretary’s longstanding regulation and 

interpretation of that regulation requiring that employers directly pay the full 

minimum wage for such non-tipped time.

Case Name: Perez v. Zhao “Jenny” Zeng Hong and Perez v. Huang “Jackie” Jie

Venue: Ninth Circuit

Issue: Whether the district court improperly withdrew proposed jury instructions regarding 

the determination of liability and apportionment of damages for each individual 

defendant, and should have distinguished the liability of each defendant on the 

special verdict form such that one individual was not an employer under the FLSA 

and should not have been held jointly and severally liable; whether the district court 

improperly instructed the jury on the elements of retaliation; and whether the court 

erred by permitting the jury, rather than the court, to decide whether the Defendants’ 

had a good faith defense to avoid assessment of liquidated damages

Case Name: Perez v. El Tequila, LLC

Venue: Tenth Circuit

Issue: Whether the district court correctly ruled at summary judgment that Defendants – a 

restaurant and its owner -- had failed to create a disputed issue of fact as to the 

Secretary's back-wage calculations; whether the district court appropriately granted 

summary judgment to the Secretary on conceded legal issues and deemed undenied 

factual allegations to be admitted; whether the district court acted within its 

discretion by finding that Defendants had not demonstrated excusable neglect when 

filing an untimely answer; and whether the district court appropriately granted the 

Secretary's post-trial motion for judgment as a matter of law that Defendants' 

violations were willful where Defendants admitted to falsifying records, lying to a 

federal investigator, and instructing their employees to lie.

Case Name: Romero v. Top-Tier Colo.

Venue: Tenth Circuit

Issue: Whether the district court erred by dismissing claims under the FLSA filed by an 

employee who alleged that her employer credited tips received from customers 

toward the minimum wages due for all of her hours worked even though she 

sometimes performed tasks unrelated to her tipped occupation and spent more than 
TAB 6: Significant Cases

42

20 percent of her work time performing tasks that were related to her tipped 

occupation but did not produce tips, where the court relied on case law from outside 

of the tip credit context rather than the Secretary’s longstanding regulation and 

interpretation of that regulation requiring that employers directly pay the full 

minimum wage for such non-tipped time.

Case Name: Freixa v. Prestige Cruise Services, LLC

Venue: Eleventh Circuit

Issues: Whether the district court erred in concluding that an employee was paid a regular 

rate in excess of one and one-half times the statutory minimum wage as required for 

the overtime pay exemption at section 7(i) of the FLSA to apply when it divided the 

employee’s total pay including commissions by his total hours worked during his 

entire employment to find his average hourly rate instead of allocating his 

commissions to particular workweeks as provided by regulation, and determining on 

a workweek-by-workweek basis whether section 7(i)’s minimum pay requirement 

was met. 

Case Name: Perez v. Bland Farms

Venue: U.S. District Court for the Southern District of Georgia

Issue: Whether the workers in a Vidalia onion packing shed—which processes onions from 

multiple farms under contract to a single grower—are entitled to the agricultural 

exemption to overtime pay under the FLSA.

Case Name: Perez v. Off Duty Police Services, Inc.

Venue: U.S. District Court for the Western District of Kentucky

Issue: Whether security guards and traffic control officers—many of them off-duty police 

officers—are employees or independent contractors under the FLSA.

Case Name: Perez v. Work Services, Inc.

Venue: U.S. District Court for the District of South Carolina

Issue: Whether a turkey processing plant paid workers with mental disabilities minimum 

wage and overtime. (This case involves collaboration with EEOC, and is an 

offshoot of the Henry’s Turkey case which resulted in the largest recovery in EEOC 

history.)

Case Name: Perez v. Holland Acquisitions

Venue: United States District Court for the Western District of Pennsylvania

Issue: Employer misclassified workers as independent contractors performing title searches 

for the oil and gas fracking industry in Pennsylvania, Ohio and West Virginia. Back 

wages and liquidated damages estimated to be in excess of $1M for more than 400 

employees.

Case Name: Perez v. Las Margaritas

Venue: United States District Court for the Eastern District of Pennsylvania

Issue: Employer willfully violated the FLSA by requiring restaurant servers to participate 

in an invalid tip pool and failing to pay them minimum wage and overtime 
TAB 6: Significant Cases

43

premiums. Back wages and liquidated damages estimated to be in excess of $1M for 

the employees.

Case Name: Perez v. Olympic Linen

Venue: United States District Court for the Eastern District of Pennsylvania

Issue: Employer willfully violated the FLSA by failing to pay commercial laundry workers 

minimum wage and overtime premiums. Back wages and liquidated damages 

estimated to be in excess of $1.2M for fifty employees.

Case Name: Secretary of Labor v. El Rodeo-Electric Inc., et al. 

Venue: U.S. District Court for the Western District of Virginia-Roanoke Division 

Issue: Whether the employer, who operates five Mexican restaurants, willfully violated the 

Fair Labor Standards Act for failing to pay its servers a minimum cash wage of at 

least $2.13 an hour, and instead only compensated employees with their tips. 

Further, whether other employees were paid salaries that were insufficient to meet 

the statutory minimum wage and overtime pay requirements. The back wages owed 

are calculated to be $2,524,585.47. Wage and Hour has demanded the full amount 

of back wages and an equal amount in liquidated damages, for a total of 

$5,049,170.87

Case Name: Secretary of Labor v. TEAM Environmental LLC

Venue: U.S. District Court for the Southern District of West Virginia

Issue: Whether the employer violated the Fair Labor Standards Act for failing to pay 267 

non-exempt employees the required overtime rate for hours worked over forty in a 

workweek. Most of these employees were inspectors who provided services to gas 

companies to inspect the work of third party contractors. The employees were paid 

on a day rate and only paid overtime when the employer’s contract with its client 

expressly provided for overtime pay. The back wages owed are calculated to be 

$2,134,505.74. Wage and Hour has demanded the full amount of back wages and an 

equal amount of liquidated damages, for a total of $4,269,011.48.

Case Name: Secretary v. Cathedral Buffet, Rev. Angley

Venue: U.S. District Court Northern District of Ohio

Issue: Whether Cathedral Buffet, a for-profit corporation owned by a televangelist that 

operates a restaurant, violated the minimum wage and overtime provisions of the 

FLSA when it allowed “volunteers” to work at the restaurant and, if so, are these 

workers entitled to approximately $400,000 in backwages and liquidated damages.

Case Name: Secretary v. Confidential Services, Beverlle Sokol and Katrina Zidel

Venue: U.S. District Court Southern District of Ohio

Issue: Whether Confidential Services, a vehicle repossession company, violated the 

minimum wage and overtime provisions of the FLSA when it failed to pay 

employees for work over 40 hours and treated “helpers” as independent contractors; 

and, if so, are these workers entitled to approximately $1.5 million in back wages 

and equal sum in liquidated damages.

Case Name: Perez v. Jani-King of Oklahoma
TAB 6: Significant Cases

44

Venue: United States District Court for the Western District of Oklahoma

Issue: Whether Jani-King of Oklahoma should be enjoined from violating the FLSA 

recordkeeping provisions by not treating the persons who purchase and work as 

franchisees of Jani-King of Oklahoma as employees of Jani-King of Oklahoma 

rather than independent contractors under the Fair Labor Standards Act.

Case Name: Perez v. Paragon and Brian Jessop (contempt)

Perez v. Fundamentalist Church of Jesus Christ of Latter-Day Saint (FLDS), Lyle 

Jeffs and Dale Barlow (injunctive relief and back wages)

Administrator v. Paragon, Brian Jessop, and Dale Barlow (civil money penalties)

Venue: United States District Court, District of Utah (contempt and injunction)

DOL Office of Administrative Law Judges

Issue: Whether Paragon, Brian Jessop, the FLDS, and Dale Barlow utilized hundreds of 

children in violation of several child labor provisions in conducting a 2012 pecan 

harvest and whether those violations also constituted contempt of the 2007 

permanent injunction against the use of unlawful child labor.

Case Name: Perez v. Commonwealth of Puerto Rico 

Venue: U.S. District Court for the District of Puerto Rico 

Issue: Whether Puerto Rico failed to pay police officers and K-9 handlers for all overtime 

hours worked and overtime when due. 

Case Name: Perez v. Ace Restaurant Group, 15-cv-07149 (JHR-AMD) 

Venue: U.S. District Court for the District of New Jersey 

Issue: Overtime violations and whether the Department of Labor can seek full minimum 

wage and withheld tips as remedy for violations of the tip credit provisions, 203(m). 

Case Name: Perez v. TLC Sober Living Homes

Venue: U.S. District Court for the Northern District of California

Issue: Whether persons who manage sober living group homes for a for-profit enterprise 

are employees or volunteers entitled to the FLSA minimum wage and overtime 

provisions. 

Case Name: Perez v. Nuzon Corporation

Venue: U.S. District Court Central District of California, Southern Division

Issue: Whether operator of multiple residential care homes for the elderly/disabled falsified 

time records and violated FLSA’s minimum wage and overtime provisions.

Case Name: Perez v. Austin Electric

Venue: U.S. District Court District of Arizona

Issue: Whether electrical contractor who paid on piece rate basis failed to maintain an 

accurate record of hours worked and failed to pay minimum wage and overtime to 

workers.

Case Name: Perez v. West Coast Drywall

Venue: U.S. District Court Central District of California
TAB 6: Significant Cases

45

Issue: Whether drywall contractor failed to pay minimum wage and overtime to over 1100 

workers during statutory period, instructed employees to falsify time records and 

failed to maintain accurate record of hours worked.

Case Name: Perez v. Westside Drywall

Venue: U.S. District Court District of Oregon

Issue: Whether firm failed to pay minimum wage and overtime to construction workers.

Case Name: Perez v. Kazu Construction

Venue: U.S. District Court District of Hawaii

Issue: Whether construction company that required employees who worked 60-70 hours 

per week to “bank” overtime hours, without keeping records of the extra hours 

worked, and where employees did not use the allegedly banked hours, violated 

FLSA and owes backwages of at least $500,000.

Case Name: Perez v. Cash 2 U/Angel’s Recycling

Venue: U.S. District Court Central District of California

Issue: Whether employees of company that recycles cans and bottles violated FLSA’s 

minimum wage, overtime and recordkeeping provisions when employees were paid 

a day rate of $50 or $60, and were not paid overtime when they worked over 40 

hours in a workweek.

Case Name: Perez v. Valley Garlic

Venue: U.S. District Court Eastern District of California

Issue: Whether grower and farm labor contractor who supplied labor to grower violated 

MSPA’s transportation safety provisions and failed to pay wages required under the 

FLSA.

Case Name: Perez v. Alternative Senior Care, Inc.

Venue: U.S. District Court, Southern District of California

Issue: Whether care home provider with eight facilities created multiple corporate entities 

that functioned as co-employers to obfuscate its employer status and misclassified its 

workers as independent contractors, violated the FLSA’s wage and recordkeeping 

provisions 

Case Name: Perez v. TBG

Venue: U.S. District Court, District of Arizona

Issue: Whether co-employers, including two staffing agencies and a professional employer 

organization failed to pay “lumpers” who unloaded groceries at an Albertson’s 

warehouse overtime rates.

Case Name: Perez v. Wellfleet Communications

Venue: U.S. District Court, District of Nevada

Issue: Whether marketing company that misclassified its telemarketers as independent 

contractors at its call center and paid them only commissions, violated the when it 
TAB 6: Significant Cases

46

failed to pay minimum wage, even sometimes no wages and overtime to over 1500 

workers

Case Name: Magers v. Seneca Re-Ad Indus., Inc.

Venue: DOL Administrative Review Board

Issue: Three workers with disabilities received a favorable ALJ decision in their challenge 

of the sub-minimum wages they were paid by their employer under section 14(c) of 

the FLSA, which pprovides that workers whose disabilities impair their earning or 

productive capacity for the work being performed may be paid at sub-minimum 

wage rates "to the extent necessary to prevent curtailment of opportunities for 

employment" for such workers. A DOL ALJ rejected the employer's contention that 

the employees' disabilities impaired their productivity and rejected the methods used 

by the employer to set the subminimum wage rates because of insufficient evidence 

showing a nexus between the workers' disabilities and their inability to perform the 

work at rates measured for non-disabled workers. The case presents questions of 

first impression regarding the appropriate statute of limitations, the burden of proof 

as to coverage, and availability of liquidated damages and attorneys’ fees in a 14(c) 

proceeding.

Case Name: Secretary v. Five Oaks Achievement Center, LLC d/b/a Five Oaks Achievement 

Center; Whispering Hills Achievement Center, LLC d/b/a Whispering Hills 

Achievement Center; and North Fork Educational Center, LLC d/b/a North Fork 

Educational Center

Venue: United States District Court for the Southern District of Texas, Houston Division

Issue: Whether Defendants failed to pay overtime wages to its direct care workers by 

unlawfully claiming an 8-hour sleep time exemption when Defendants failed to 

provide adequate sleep facilities and at least 5 hours of uninterrupted sleep.

Prevailing Wages - Davis-Bacon and Related Acts/Service Contract Act

Case Name: PWCA & NAPWC v. Sec’y 

Venue: DOL Administrative Review Board

Issue: Whether the Administrator acted in a manner consistent with the Davis-Bacon Act 

and its implementing regulations and reasonably exercised his discretion when he 

determined that contractors must annualize contributions to supplemental 

unemployment benefit plans.

Case Name: Velocity Steel, Inc. v. Adminstrator

Venue: DOL Administrative Review Board

Issue: Whether the Administrator reasonably exercised his discretion when he denied 

Velocity Steel Inc.’s four conformance requests because the proposed wage rates did 

not bear a reasonable relationship to the wage rates listed in the applicable wage 

determinations

Case Name: MLB Transp., Inc. v. Administrator 

Venue: DOL Administrative Review Board 
TAB 6: Significant Cases

47

Issue: Whether workers on U.S. Department of Veterans Affairs contracts covered by the 

Service Contract Act transporting veterans to non-emergency medical appointments 

were properly classified as shuttle bus drivers rather than taxi drivers and whether 

the shuttle bus driver wage rates are correct.

Family and Medical Leave Act

Case Name: Woods v. Start Treatment & Recovery Centers

Venue: Second Circuit

Issues: Whether the district court erred in not giving a mixed-motive jury instruction for 

Egan’s claim of retaliation for exercising his FMLA rights; and whether the district 

court erred in requiring that Egan have direct evidence of the Delaware River Port 

Authority’s retaliatory motive in order to use a mixed-motive framework under the 

FMLA

Case Name: Egan v. Delaware River Port Auth.

Venue: Third Circuit

Issues: Whether the district court erred in not giving a mixed-motive jury instruction for 

Egan’s claim of retaliation for exercising his FMLA rights; and whether the district 

court erred in requiring that Egan have direct evidence of the Delaware River Port 

Authority’s retaliatory motive in order to use a mixed-motive framework under the 

FMLA.

Case Name: Jones v. Allstate Insurance Co.

Venue: Eleventh Circuit

Issues: Whether the district court erred in not giving a mixed-motive jury instruction for 

Egan’s claim of retaliation for exercising his FMLA rights; and whether the district 

court erred in requiring that Egan have direct evidence of the Delaware River Port 

Authority’s retaliatory motive in order to use a mixed-motive framework under the 

FMLA

Migrant and Seasonal Agricultural Worker Protection Act

Case Name: Alpha Services. v. Perez

Venue: Ninth Circuit

Issue: Administrative Procedure Act (APA) challenge, on appeal from a favorable U.S. 

District Court opinion, to an Administrative Review Board decision affirming the 

Wage-Hour Division’s action under the Migrant and Seasonal Agricultural Worker 

Protection Act against Alpha Services, a forestry company, for transporting its 

workers in pick-up trucks modified to carry passengers.

Enforcement of Immigration and Nationality Act/Temporary Foreign Workers H-2A 

(Agricultural) H-2B (Nonagricultural) and H-1B (Technical), 

Case Name: Aleutian Capital Partners v. Perez

Venue: U.S. District Court for the Southern District of N.Y.
TAB 6: Significant Cases

48

Issue: Whether (1) upon receiving a complaint, the Wage and Hour Division is authorized 

to investigate the employer’s violations of the rights of a non-complaining H-1B 

worker without following the “credible information-reliable source” investigation 

procedures outlined in the INA and the DOL regulations; (2) bonuses contingent on 

revenue can be used to satisfy an employer’s monthly payment obligations to its H1B employees; and (3)Whether WHD’s investigation of an H-1B employee not 

named in the complaint occurred outside the statute of limitations period.

Case Name: Overdevest Nurseries, LP.

Venue: DOL Administrative Review Board

Issue: Whether the ALJ correctly concluded that Overdevest’s non-H-2A workers 

performing work within the scope of the job order and the same work as the H-2A 

workers were corresponding workers under the H-2A program and therefore due the 

H-2A wage rate.

Case Name: Administrator v. ME Global, Inc.

Venue: DOL Administrative Review Board

Issues: Whether ALJ correctly ruled that because ME Global failed to effect a bona fide 

termination of its H-1B-sponsored employee and owed back wages for the rest of the 

period of his LCA until he voluntarily left the country 2.5 years later. 

Case Name: Administrator, WHD v. Fernandez Farms

Venue: DOL Administrative Review Board

Issues: Whether the ALJ erred in concluding that the successors in interest to Mr. Fernandez 

and Fernandez Farms, i.e., family members who started their own companies during 

the course of the proceedings, lacked sufficient notice and opportunity for hearing to 

be debarred in the same proceedings.

Case Name: Seasonal Ag Services

Venue: DOL Office of Administrative Law Judges

Issue: On remand for ALJ to determine whether Seasonal Ag Services (SAS) and Ludy 

Moreno Services were joint employers, which would obligate SAS to pay the 

required wage rate to “corresponding” non-H-2A workers who performed 

agricultural work included in the job order. The ALJ held that SAS did not jointly 

employ the non-H-2A workers, based on his determination that there was no 

evidence of collusion. The Board held that the ALJ’s decision was in error and that 

the appropriate test for joint employment under the H-2A program is set forth in the 

H-2A regulations and is based on the common law of agency, and that any evidence 

of collusion is irrelevant to a determination of joint employment.