Best Practices to Survive a DOL FMLA Investigation
The Department of Labor (DOL) is cracking down harder on their on-site investigations of employers’ facilities and are placing an emphasis on recordkeeping compliance, “systemic” violations, and supervisors’ accountability in administering FMLA. So this means employers need to be prepared if the DOL decides to pay a visit to check FMLA, request documents, and interview supervisors and employees. Take notes and prepare yourself for such a situation.
FMLA Investigation Survival Tips
FMLA requires employers to maintain the following records for a 3-year period:
- Basic payroll information and identifying employee data, including compensation paid to the employee and the manner in which it was determined, as well as all additions and reductions in pay. (Even employers with no FMLA-covered employees must keep these records.)
- A record of dates when FMLA leave is taken by FMLA-eligible employees (time records, requests for leave, etc., if so designated). Leave must be designated in records as FMLA leave. However, leave so designated may not include leave required under state law or an employer plan that is not also covered by the FMLA.
- The hours of FMLA leave taken by eligible employees if in increments of less than 1-full day.
- Copies of all notices given by the employer to employees, as well as any received by the employer requesting FMLA leave. Copies may be maintained in employee personnel files.
- Policies and benefits. Information stored in any form (paper or electronic) that explains employer policies and employee benefits and the payment for benefits.
- Records of any dispute between the employer and an eligible employee regarding the designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.
- Records clearly showing that exempt employees worked fewer than 1,250 hours in a 12-month period, if leave is denied.
- FMLA-related medical records and documents pertaining to medical certifications, recertifications, or medical histories of employees or employees’ family members created for the purposes of the FMLA.
Unless there are any complaints or cause to believe violations, the DOL may inspect records once every 12 months.
What Does an On-Site Investigation Look Like?
Usually FMLA investigations will warn of their presence beforehand, but it’s not necessary that they do so. Employers need to have everything in order from documents to the person who will be able to handle the investigation at a moment’s notice.
The on-site investigation generally proceeds in the following steps:
- An investigative conference,
- A records review,
- Employee interviews,
- A final conference call, and
- Communication of the results of the investigation.
The investigator can request a conference explaining how the investigation will proceed and the employer’s contact person can request that the investigator explain the laws that might be implicated and what locations and/or categories of employees will be involved.
The contact person should not ask the investigator if the investigation came about from an employee complaint or which employee complained. Best practice is to keep thorough notes of what the investigator asked and the answers that were provided.
The investigator will want to review whether the employer is covered under FMLA so they will need to review FMLA records, payroll records, and other relevant documents. And if the investigation was brought on by an employee complaint then more records will be needed to determine if that employee meets the FMLA eligibility requirements.
The employer’s contact person should have all the documents readily available for the investigator and should have counsel available as well to consult with whether or not photocopies or records should be removed from the premises. They should also be diligent in recording which documents the investigator reviewed.
The investigator will most likely want to speak to employees regarding the employer’s FMLA practices, so let employees know that they may – but are not required to – speak freely with the investigator without a fear of retaliation. The employee should feel comfortable going into the interview so first ask if they’re willing to be interviewed, let them know that the employer is cooperating with the investigation, and don’t try to control what they say. Should they want to speak openly about it afterward then keep notes of what they said, but don’t question them about the interview.
This is when the investigator will disclose to the employer whether they have uncovered any violations and, if so, advise the employer on how to correct them.
If counsel is not involved already, this would be the best time to do so. Counsel will help the employer decide whether to:
- Present additional facts or evidence to the DOL;
- Concur with the investigator’s findings and comply with his or her instructions;
- Enter negotiations to reduce the amount owed (this process, called “conciliation,” may or may not work, depending on the flagrancy of the violation and whether your liability is clear or more of a close call);
- or Contest the finding(s).
Should counsel find violations of the FMLA, then the employer should promptly change its policy and/or procedures to prevent anymore violations.
For more information contact firstname.lastname@example.org. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.