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A few weeks ago, I was scrolling through my Instagram feed while sitting in an Uber vehicle on the way home. My plan to run home had been derailed by the setting sun and lack of reflective gear or lights. As I was browsing, I saw a video pop up of former major league catcher Eddie Pérez talking about Hall of Famer Greg Maddux and what he would call his own pitches. Perez noted that how Maddux received the ball will dictate the next pitch thrown. Here I was in shock that no one had broken this code throughout Maddux’s career. Imagine how much of an advantage a batter would have if he knew the next pitch Maddux wanted to throw (if someone had broken the code, I doubt Maddux would have become known as “The Professor”).

For employers, there is no way to know what the legislature, government agencies, employees or competitors may throw at you. That’s why it’s important to listen and take advantage of the moments when the “pitch” is tilted. For example, just last month, the Labor Department’s top attorney announced that the agency would target several specific employment contract provisions that it believes discourage workers from exercising their rights under federal workplace laws. Five of these provisions are:

1. Improper Waiver of Wage and Hour Rights

The report says employers sometimes try to get workers to waive their Fair Labor Standards Act (FLSA) rights to minimum wage, overtime pay and certain related damages by adding clauses that shorten the amount of time workers can they can file claims or reduce the penalties employers face if found guilty. The DOL report says clauses like these are illegal.

2. Incorrect Classifications of Independent Contractors

Some contracts label workers as “independent contractors,” with the real purpose of avoiding benefits and protections like minimum wage, overtime, and safety standards. However, a label does not decide the legal status. The report reminds employers that they cannot legally reclassify workers as contractors just to avoid legal responsibilities; instead, it must focus on the actual employment relationship to determine classification status.

3. Improper attorney fee provisions

Similarly, some contracts require workers to pay the employer’s attorney’s fees if they lose a legal dispute. These “loser pay” clauses create such a financial risk, the report says, that many workers would avoid pursuing legitimate claims. The DOL believes this approach runs afoul of federal laws like the FLSA, which allow fee shifting only in favor of workers — meaning that employees who win their cases can cover their legal fees, but companies can’t ask the same from workers who lose . The result of these provisions is a significant deterrent to workers enforcing their rights in the eyes of the DOL.

4. Improper stay or payment provisions

Stay-or-pay provisions require workers who leave a job before a set period to repay the employer a certain amount, often charging them for training or relocation costs. But these severe penalties can trap workers in their jobs. Provisions that serve as pure penalties and drag workers’ wages below minimum standards or exclusively benefit the employer are not permitted under federal law.

5. Initial Initial Internal Safety Reporting Obligation

Some companies require workers to report safety issues first to management before going to workplace safety agencies such as OSHA. According to the DOL report, this type of policy often discourages workers from reporting violations if they believe management will retaliate or ignore the problem. The report reminds employers that federal law supports workers’ rights to report safety concerns directly to government authorities, ensuring prompt and impartial responses to potential hazards. This right is fundamental to creating safer jobs.

Knowing the pitch to come does not guarantee a hit. Real action is required – you can’t hit the ground if you don’t swing. Also, knowing about a DOL crackdown on problematic employment provisions is meaningless without action. Now is the time to make a change and review workplace policies, applications, forms and other agreements to determine if there is any language that might cross the line. The DOL has specifically noted that it will target the “small print” provisions, so be sure to review all of the language — especially provisions that would have undoubtedly been in place for years. Failure to do so could result in hits while watching.

Stephen Scott is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing the interests of employers in all aspects of employment law. Contact him at 503-205-8094 or (email protected).

The opinions, beliefs and views expressed in the preceding commentary are those of the author and do not necessarily reflect the views, beliefs and views of the Daily Journal of Commerce or its editors. Neither the author nor DJC guarantees the accuracy or completeness of any information published here.