Mexico is overturning rules that forced workers into government-allied unions, but enforcement will be tough as those unions and employers push back.

Nearly 1,000 workers in regional Queensland, New South Wales and Victoria have been back paid more than AUD 580,000 (USD 400,000) after Fair Work Inspectors uncovered widespread non-compliance with Australia’s workplace laws.

Inspectors visited 1,385 businesses across cities in Victoria, New South Wales, and Queensland. A cross-section of industries was targeted, with the accommodation, hospitality and retail sectors a particular focus for the Ombudsman.

Inspectors found 22% of all audited business failed to pay their employees correctly, 15% were in breach of non-monetary obligations by not providing proper payslips or keeping proper employment records, and 6% failed to both pay their employees correctly and meet their non-monetary obligations.

The Ombudsman recovered an average of approximately AUD 600 (USD 413) per underpaid employee. The most common breach of workplace laws was underpayment of the minimum hourly rate, with inspectors also uncovering underpayment of overtime and penalty rates.

Fair Work Ombudsman Sandra Parker commented, “Fair Work Inspectors targeted specific regions after employees contacted us for help, many of whom could be vulnerable to workplace exploitation due to their youth or visa status. It is unacceptable that almost half of the businesses we visited were simply unaware of their obligations under workplace laws and were not paying the lawful minimum hourly wage.”

“The FWO will revisit these businesses as part of our ongoing national proactive compliance monitoring programs. Appropriate compliance and enforcement action will be used against employers who continue to breach workplace laws,” Parker said.

In addition to recovering lost wages, inspectors issued 39 cautions warning employers about the consequences of continued non-compliance, and 27 on-the-spot fines, which involved penalties of AUD 5,960 (USD 4,111) for breaches of pay slip or record-keeping requirements.

By Pamela Wolf, J.D.

The Court asked the federal government to file a previously waived response in a challenge to a Fourth Circuit ruling that retroactive monetary relief was mandatory in an ADEA pension case.

The High Court on February 6 asked the EEOC to weigh in on a petition for certiorari challenging a Fourth Circuit ruling taking the federal agency’s side by holding that a retroactive award of monetary relief was mandatory under the ADEA in the pension case before the appeals court. The request for a response to the petition could signal that the Court is interested in taking up the case.

Baltimore County, Maryland, filed its bid for review of the appeals court ruling on December 13, 2018. A month later, on January 18, 2019, DOJ Solicitor Noel Francisco waived the federal government’s right to respond to the petition unless asked to do so. The Court has now requested that the government respond by March 8, 2019.

Mandatory remedy. Below, the Fourth Circuit vacated and remanded the district court’s denial of retroactive back pay to the EEOC under the ADEA, finding that Congress consciously chose to incorporate the powers, remedies, and procedures of the FLSA into the ADEA.

Here, where the contribution rates for a county’s age-based employee retirement benefit plan were determined to be unlawfully based on age, back pay awards under the ADEA are mandatory legal remedies, the appeals court found, and the retroactive monetary award, such as the back pay sought here, was a mandatory legal remedy under the ADEA upon a finding of liability.

Contrary to precedent. Baltimore County has asserted several reasons why the Supreme Court should take up that case, including that the Fourth Circuit’s holding is contrary to the Court’s instructions in three pension cases not to award retroactive monetary relief against pension plans (City of Los Angeles, Dep’t of Water & Power v. Mannhart (1978); Arizona Governing Comm. For Tax Deferred Ammunity & Deferred Comp. Plans v. Norris (1983); and Florida v. Long (1988).

‘Havoc’ will result. The county also contends that appeals court ruling is wrong because it does not recognize the “havoc” it will cause to county pension plan administrators. “The calculation of ‘amounts owing’ is not a simple matter of calculating unpaid minimum wages or overtime compensation as contemplated by the enforcement provision of the FLSA,” the petition states. “Rather, the County has estimated that it will involve the complex review of the files of and individualized actuarial calculations for a class of approximately 12,000 current and future pension beneficiaries.”

Other arguments. Among other things, the county also argues that the ADEA’s enforcement provision gives the district court “jurisdiction to grant such legal and equitable relief as may be appropriate,” and that no other federal court has interpreted the enforcement provision of the ADEA to require that retroactive monetary relief be awarded for ADEA violations.