New York Attorney General Barbara D. Underwood has filed a lawsuit against the U.S. Department of Labor after it failed to respond to a records request. Underwood asked the agency for records regarding its new Payroll Audit Independent Determination (PAID) Program in April 2018 through a Freedom of Information Act (FOIA) request. The DOL has withheld the information, Underwood’s lawsuit alleged, even though the law required the agency to respond to Underwood within 20 business days. It has now been more than 100 days since she submitted her FOIA request.
When the DOL launched the PAID Program in April, 11 attorneys general — including Eric Schneiderman, the New York Attorney General at the time — sent a letter to Labor Secretary Alexander Acosta to express several concerns about the program. Chiefly, they worry that the program allows employers to violate labor laws and avoid penalties by paying wages the employees were already owed.
“The PAID Program is nothing more than a get-out-of-jail-free card for predatory employers,” Underwood said in a statement. “New York workers have a right to know why the Secretary of Labor decided to let employers off the hook when they don’t pay their workers. The Labor Department failed to provide required information — so we’re taking them to court to get the information to which we are legally entitled.”
Many questions still surround the PAID program since its commencement, and the DOL’s withholding of information hasn't brought much clarity to the situation.
Christine Owens, the executive director of the National Employment Law Project, echoed Underwood’s concerns with uncanny precision when the PAID Program launched last spring. “The only thing that this program does is give employers a get-out-of-jail-free card, which insulates them from responsibility for damages and penalties,” Owens previously told HR Dive.
But other employment experts look at the program with more optimism; the program allows employers to resolve pay issues efficiently, according to Tammy McCutchen, former administrator of DOL’s Wage and Hour Division (WHD) and current principal at Littler Mendelson, P.C. She said employees will benefit alongside their employers, since the DOL will collect more back wages for them, “which, frankly, they have no chance of doing just with enforcement.”