This just in—the U.S. Department of Labor (DOL) anticipates an increase in on-site FMLA investigations. DOL Branch Chief for FMLA, Diane Dawson, speaking at a conference hosted by the Disability Management Employer Coalition, let employers know that the DOL will be modifying its approach to FMLA investigations and increasing on-site investigations in order to conduct more efficient enforcement, access FMLA records and data directly, and conduct interviews with employees on-site. According to Dawson, DOL’s national office has instructed the regional offices to identify occasions when an audit would include an on-site visit, whether announced or unannounced.
As a result of this new enforcement effort by the DOL, FMLA-covered employers should ensure that they are ready for a FMLA investigation and familiarize themselves with the FMLA investigation process.
How does an FMLA investigation begin?
DOL’s Wage and Hour Division (WHD) is responsible for enforcing the FMLA. Enforcement procedures, modeled after the Fair Labor Standards Act, allow for employees to allege FMLA violations by either filing a complaint with the federal Secretary of Labor or bringing a private civil suit against the employer. If the employee chooses to file a complaint, the WHD will investigate. Most WHD investigators give advance notice of an inspection, often by phone. However, the agency has the authority to undertake unannounced employer visits.
Employers should have a procedure in place for handling investigations, including having a designated person who is prepared to respond at a moment’s notice. That person should be well versed in the process that takes place in DOL investigations, the employer’s FMLA policies and procedures, and the employer’s procedures for responding to WHD investigations, including an understanding of when cooperation with the DOL is required, when cooperation is usually warranted, and when the line should be drawn.
Regardless of who the designated point person is for FMLA investigations, employers should take time to regularly train all management on proper FMLA procedures, nondiscrimination, retaliation, changes in the new FMLA rules, and especially, the employer’s own policy and procedures for addressing FMLA requests.
The WHD investigator may request a conference, during which he or she will explain how the investigation will proceed. The employer’s contact person should request that the investigator explain the scope of the investigation, including the laws that might be implicated and what locations and/or categories of employees will be involved.
The contact person should not, however, ask if the investigation arose in response to an employee complaint or which employee complained. Employers should keep detailed notes about any questions the investigator may ask and the answers that are given.
The investigator may review the employer’s FMLA policy, records, payroll records, and other relevant documents. To prepare, employers should act now to thoroughly audit FMLA policies, practices, and recordkeeping. This must include a thorough review of FMLA policies to ensure compliance with the latest 2013 regulations, to confirm that policies are distributed in employee handbooks and notices, and that the most recent forms and notices are being used (the DOL has all of the most recent forms and notices posted on its website).
Also, don’t forget the GINA safe harbor statement with all employee medical certification forms. (The DOL does not provide the GINA statement in its medical certification form, but one can be found on HR.BLR.com. For more information on recordkeeping under FMLA, see Chapter 700 of the FMLA Compliance Guide.
The employer’s point person should make the records available for inspection and should consult with counsel before providing photocopies or allowing the records to be removed from the premises. The point person should also keep a record of the specific documents reviewed by the investigator.
The WHD investigator will also want to interview employees regarding the employer’s FMLA practices. Interviews are normally conducted on the employer’s premises. Employees should be informed that they may (but are not required to) speak freely to the investigator without fear of retaliation.
Do not try to control what employees say in the interview or grill them about it afterward. Simply tell them that the employer is cooperating with the investigation and ask whether they are willing to be interviewed. Keep notes about which employees were interviewed. Some employees may voluntarily reveal information about what was said in the interview. In that event, make sure to keep adequate notes of what they say.
When the investigation is completed, the investigator will inform the employer whether he or she has uncovered any violations and, if so, advise the employer how to correct them. For example, if the investigator concludes that the employer violated the FMLA by terminating an employee on FMLA leave, the investigator may instruct the employer to promptly compute and pay the amount of back pay and/or lost benefits owed. The inspector may even instruct the employer to offer the employee reinstatement.
If the employer has not already involved legal counsel, now is the time to do so. Counsel will be able to 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.
An experienced employment attorney can help the employer weigh all these factors in deciding how to proceed. Finally, if the investigator finds violations of the FMLA, the employer may need to change its FMLA policies and/or procedures to prevent future violations.
If the employer is unable to resolve the investigation through settlement negotiations with the investigator, the DOL may sue the employer on the employee’s behalf. If it does not sue, the affected employee may choose to do so on his or her own.
Susan Schoenfeld, J.D., is a Senior Legal Editor for BLR’s human resources and employment law publications. Ms. Schoenfeld has practiced in the area of employment litigation and counseling, covering topics such as disability discrimination, wrongful discharge, sexual harassment, and general employment discrimination. She has litigated numerous cases before the U.S. Court of Appeals, state court, and at the U.S. Department of Labor. In addition to litigating employment cases in state and federal court, she provided training and counseling to corporate clients regarding employment-related issues. Prior to entering private practice, Ms. Schoenfeld was an attorney with the Civil Rights Division at the U.S. Department of Labor in Washington, D.C., where she advised federal agencies, drafted regulations, conducted inspector training courses, and litigated cases for the Office of Federal Contract Compliance Programs, the Directorate of Civil Rights, and the Mine Safety and Health Administration. Ms. Schoenfeld received her undergraduate degree, cum laude, with honors, from Union College, and her law degree from the National Law Center at George Washington University.
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