Sec. 335. Enforcement authority
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To ensure compliance with the provisions of this subtitle, or any regulation or order issued under this subtitle, the Secretary shall have, subject to paragraph (3), the investigative authority provided under section 11(a) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 211(a) ), with respect to employers, covered direct care professionals, and other individuals affected by an employer. An employer shall make, keep, and preserve records pertaining to compliance with this subtitle in accordance with section 11(c) of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 211(c) ) and in accordance with regulations prescribed by the Secretary.
The Secretary shall not require, under the authority of this subsection, an employer to submit to the Secretary any books or records more than once during any 12-month period, unless the Secretary has reasonable cause to believe there may exist a violation of this subtitle or any regulation or order issued pursuant to this subtitle, or is investigating a charge pursuant to subsection (c). For the purposes of any investigation provided for in this subsection, the Secretary shall have the subpoena authority provided for under section 9 of the Fair Labor Standards Act of 1938 ( 29 U.S.C. 209 ).
An action to recover the damages or equitable relief prescribed in paragraph
(1)may be maintained against any employer in any Federal or State court of competent jurisdiction by a covered direct care professional or individual or a representative for and on behalf of— the covered direct care professional or individual; or the covered direct care professional or individual and others similarly situated. Any employer who violates section 334 (including a violation relating to rights provided under section 332) shall be liable to any covered direct care professional or individual affected— for damages equal to— the amount of— any wages, salary, employment benefits, or other compensation denied or lost by reason of the violation; or in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost, any actual monetary losses sustained as a direct result of the violation up to a sum equal to 56 hours of wages or salary for the covered direct care professional or individual, or the specified period described in section 332(c)(3), or a combination of those hours and that period, as the case may be; the interest on the amount described in clause
(i)calculated at the prevailing rate; and an additional amount as liquidated damages; and for such equitable relief as may be appropriate, including employment, reinstatement, and promotion. The court in an action under this subsection shall, in addition to any judgment awarded to the plaintiff, allow a reasonable attorney’s fee, reasonable expert witness fees, and other costs of the action to be paid by the defendant. The Secretary shall receive, investigate, and attempt to resolve complaints of violations of section 334 (including a violation relating to rights provided under section 332) in the same manner that the Secretary receives, investigates, and attempts to resolve complaints of violations of sections 6 and 7 of the Fair Labor Standards Act of 1938 (29 U.S.C. 206 and 207). The Secretary may bring an action in any court of competent jurisdiction to recover the damages described in subsection (b)(2)(A). Any sums recovered by the Secretary pursuant to paragraph
(2)shall be held in a special deposit account and shall be paid, on order of the Secretary, directly to each covered direct care professional or individual affected. Any such sums not paid to a covered direct care professional or individual affected because of inability to do so within a period of 3 years shall be deposited into the Treasury of the United States as miscellaneous receipts. Except as provided in paragraph (2), an action may be brought under subsection (b), (c), or
(e)not later than 2 years after the date of the last event constituting the alleged violation for which the action is brought. In the case of an action brought for a willful violation of section 334 (including a willful violation relating to rights provided under section 332), such action may be brought not later than 3 years after the last event constituting the alleged violation for which such action is brought. In determining when an action is commenced under subsection (b), (c), or
(e)for the purposes of this subsection, it shall be considered to be commenced on the date when the complaint is filed. The district courts of the United States shall have jurisdiction, for cause shown, in an action brought by the Secretary— to restrain violations of section 334 (including a violation relating to rights provided under section 332), including the restraint of any withholding of payment of wages, salary, employment benefits, or other compensation, plus interest, found by the court to be due to covered direct care professionals or individuals eligible under this subtitle; or to award such other equitable relief as may be appropriate, including employment, reinstatement, and promotion. The Solicitor of Labor may appear for and represent the Secretary on any litigation brought under subsection
(c)or (e).
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