From JDSupra, Richard Greenberg and Craig Roberts discuss concerns with the Payroll Audit Independent Determination program (“PAID”), a program offered by the Department of Labor (DOL) to encourage employers to perform a self audit to discover violations and potentially avoid penalties. In particular, employers may avoid liability to the DOL but may incur liability under state laws. They write:
DOL states that absent evidence of health or safety concerns (e.g.potential child labor violations), if it declines an employer’s request to participate in the program it will not use that request as a basis for a subsequent investigation. But DOL acknowledged that PAID self-audit requests will be subject to Freedom of Information Act (FOIA) requests, which could result in unwanted publicity for and/or additional litigation against employers.
The guidance does not address potential parallel claims under state law, over which the DOL has no jurisdiction and, as Acting WHD Administrator Bryan Jarrett reiterated during a DOL-sponsored webinar yesterday, the PAID program does not currently cover other potential claims (e.g. FMLA claims) regulated by the Agency. The concern as to how, if at all, the PAID program would alleviate possible liability for parallel state law claims was underscored last week when New York Attorney General Eric Schneiderman announcedthat his office will continue to investigate such claims and seek full remedies under state law, regardless of whether an employer has separately participated in the PAID program. Deriding the program as a form of amnesty, Schneiderman referred to it as “nothing more than a Get Out of Jail Free card for predatory employers.” Of course, many state wage and hour laws provide protections and remedies for employees greater than those available under the FLSA.