Since 1991, the number of FLSA  lawsuits filed has increased by 514 percent, with a total of 8,148 FLSA  lawsuits filed in fiscal year 2012. In fact, while federal district courts in most states saw increases in both  the number of FLSA lawsuits filed and the percentage of all civil lawsuits  filed that were FLSA lawsuits, increases in a small number of states were  substantial and contributed significantly to the overall trends. FLSA Lawsuits Filed in 2012 Were Concentrated in a Few Industries and Most Alleged Overtime Violations

Our review of a representative sample of FLSA lawsuits filed in federal  district court in fiscal year 2012 showed that approximately half were filed  against private sector employers in four industries. This concentration of lawsuits is consistent with what several  stakeholders, including DOL officials, told us about the large number of  FLSA violations in the restaurant industry. WHD Plans Its FLSA Enforcement and Compliance Assistance Efforts Annually but Does Not Analyze Relevant Data to Improve Its Guidance

		WHD Plans Its FLSA Enforcement Efforts Using an Annual, Data-Based Approach

Consistent with its stated mission of promoting and achieving compliance  with labor standards, WHD has an annual process for planning how it  targets its FLSA enforcement resources. To plan the deployment of its resources for targeted investigations, WHD  identifies broad initiatives that focus on industries it determines have a  high likelihood of FLSA violations and where workers may be particularly  vulnerable. In Its Compliance Assistance Efforts, WHD Does Not Analyze Data on Requests for Information on the FLSA in Planning How to Improve Its Guidance

Our prior reports and DOL’s planning and performance documents have  emphasized the need for WHD to help employers comply with the FLSA. To develop and  assess its interpretive guidance about the FLSA, WHD’s national office  considers input from its regional offices, but it does not have a data-based  approach that is informed by objective input, such as data on areas which  employers and workers have indicated the need for additional guidance. Recommendation for Executive Action

To help inform its compliance assistance efforts, the Secretary of Labor  should direct the WHD Administrator to develop a systematic approach  for identifying areas of confusion about the requirements of the FLSA that  contribute to possible violations and improving the guidance it provides to  employers and workers in those areas. WHD agreed with our recommendation that the agency develop a  systematic approach for identifying and considering areas of confusion  that contribute to possible FLSA violations to help inform the development  and assessment of its guidance. Appendix I: Scope and Methodology

	Analysis of the Number and Characteristics of FLSA Lawsuits

To describe what is known about trends in the number of lawsuits filed  under the Fair Labor Standards Act of 1938, as amended (FLSA), we  analyzed federal district court data provided by the Federal Judicial  Center. To provide context about identified trends such as the  increase in FLSA lawsuits, we interviewed a range of FLSA stakeholders,  including Department of Labor (DOL) officials, attorneys who specialize in  wage and hour cases, federal district court and magistrate judges,  officials from organizations representing workers and employers, and  academics. Analysis of WHD’s Planning Efforts

To describe how DOL’s Wage and Hour Division (WHD) plans its FLSA  enforcement and compliance assistance efforts, we reviewed the  agency’s planning and performance documents, as well as its published  guidance on the FLSA. We did  not assess WHD’s implementation of its enforcement and compliance  assistance plans.
Why GAO Did This Study

The FLSA sets federal minimum wage and overtime pay requirements applicable to millions of U.S. workers and allows workers to sue employers for violating these requirements. Questions have been raised about the effect of FLSA lawsuits on employers and workers and about WHD's enforcement and compliance assistance efforts as the number of lawsuits has increased. This report (1) describes what is known about the number of FLSA lawsuits filed, and (2) examines how WHD plans its FLSA enforcement and compliance assistance efforts. To address these objectives, GAO analyzed federal district court data from fiscal years 1991 to 2012 and reviewed selected documents from a representative sample of lawsuits filed in federal district court in fiscal year 2012. GAO also reviewed DOL's planning and performance documents and interviewed DOL officials, as well as stakeholders, including federal judges, plaintiff and defense attorneys who specialize in FLSA cases, officials from organizations representing workers and employers, and academics about FLSA litigation trends and WHD's enforcement and compliance assistance efforts.

What GAO Found

Substantial increases occurred over the last decade in the number of civil lawsuits filed in federal district court alleging violations of the Fair Labor Standards Act of 1938, as amended (FLSA). Federal courts in most states experienced increases in the number of FLSA lawsuits filed and the percentage of total civil lawsuits filed that were FLSA cases, but large increases were concentrated in a few states, including Florida and New York. The number of workers involved in FLSA lawsuits is unknown because the courts do not collect data on the number of workers represented. Many factors may contribute to this general trend; however, the factor cited most often by stakeholders, including attorneys and judges, was attorneys' increased willingness to take on such cases. In fiscal year 2012, an estimated 97 percent of FLSA lawsuits were filed against private sector employers, often from the accommodations and food services industry, and 95 percent of the lawsuits filed included allegations of overtime violations.
The Department of Labor's (DOL) Wage and Hour Division (WHD) has an annual process for planning how it will target its enforcement and compliance assistance resources to help prevent and identify potential FLSA violations, but it does not compile and analyze relevant data to help determine what guidance is needed, as recommended by best practices previously identified by GAO. In planning its enforcement efforts, WHD targets industries it determines have a high likelihood of FLSA violations. Although WHD does not analyze data on FLSA lawsuits when planning its enforcement efforts, it does use information on its receipt and investigation of complaints about possible FLSA violations. In developing its guidance on FLSA, WHD considers input from its regional offices, but it does not have a systematic approach that includes analyzing relevant data, nor does it have a routine, data-based process for assessing the adequacy of its guidance. For example, WHD does not analyze trends in the types of FLSA-related questions it receives. Since 2009, WHD has reduced the number of FLSA-related guidance documents it has published. According to plaintiff and defense attorneys GAO interviewed, more FLSA guidance from WHD would be helpful, such as guidance on how to determine whether certain types of workers are exempt from overtime pay and other requirements.

What GAO Recommends

GAO recommends that the Secretary of Labor direct the WHD Administrator to develop a systematic approach for identifying and considering areas of confusion that contribute to possible FLSA violations to help inform the development and assessment of its guidance. WHD agreed with the recommendation, and described its plans to address it.