Anyone who owns a business in New Jersey knows that it is a very pro employee state in which to operate a company. They no doubt are also aware that the New Jersey Department of Labor (“NJDOL”) can be quite aggressive in enforcing New Jersey’s Labor and Employment Laws, especially if your company has been the subject of a wage and hour audit by that agency and experienced just how uncomfortable such an investigation can be. But are such audits becoming even more difficult and uncomfortable? Is it possible that today the agency is becoming even more aggressive and pushy in how they are treating companies and their staff in performing these audits?
Unfortunately, I am seeing a trend in that direction recently. A pair of my clients have been cited for a “hinderance” violation, meaning that the client is being accused of not cooperating in the investigation process. Such an offense carries a heavy potential fine of at least $1000 and is considered a serious violation.
So, what did my clients do to receive such a citation? They must have done something very significant to get cited for such a violation, correct?
Wanna know what my clients did? When the investigator from the NJDOL showed up unannounced and unexpected at their company the client simply advised the investigator that they did not want to move forward with the investigation without having their attorney involved in that process. Wow, such audacity….to have the nerve to not want to answer questions from a governmental official in a quasi-criminal proceeding without the company’s constitutionally protected right to utilize a lawyer in such a legal proceeding!
Before I began seeing this unfortunate trend, my experience was that once an investigator was told that counsel was desired, the inquiry stopped and did not continue until counsel became involved and no one was cited for “hinderance” in making that request. I do not know why this practice suddenly changed. Maybe it is because the agency has become more aggressive post pandemic? Or maybe there is a heightened pressure being placed on the agency to more rigorously enforce New Jersey’s wage and hour laws and be less accommodating to those being investigated. Or maybe the agency just wants to prevent a lawyer from getting involved in the investigation as long as it can. Whatever the reason, companies need to be aware of what is occurring.
Despite this recent trend, if confronted with an audit, companies should still immediately reach out to counsel and get their lawyer on the phone quickly so there can be an early direct line of communication between the lawyer and the investigator. The lawyer can then counter any aggressive tactics of the investigator at the outset of the investigation and protect the company’s legal rights in the process. That way, for the client, there is less of a chance of being accused of hinderance for anything that the client may do at the outset of the investigation and the company receives the benefit of having an attorney involved early in the process.
Wage and hour audits are not the most fun for a company to experience, especially now, when dealing with an even more aggressive investigator. Nonetheless, getting your company’s labor and employment attorney involved at the outset of the investigation will better protect the company’s legal rights and thwart the activities of an extremely aggressive agency investigator.
