You need to be prepared when they do! Because we are the leave administrator for many large employers, since the first of the year, Sedgwick has received an increased number of requests to assist our clients with Department of Labor (DOL) inquires including but not limited to the Family Medical Leave Act (FMLA). This should come as no surprise to employers. At the Disability Management Employer Coalition annual compliance conference earlier this year, Helen Applewhaite, DOL Branch Chief for the Wage and Hour Division (WHD), stated “2014 is a pivotal year for FMLA enforcement”. The DOL’s Wage and Hour division has approximately 1000 field investigators who are responsible for all Wage and Hour Division investigations, including the FMLA. So they are staffed and ready to carry out their mission!
The DOL is no longer focused on investigating a single complaint. They are now looking more broadly and will be undertaking systemic – on site investigations and looking at employer’s practices from top to bottom. In their “Fact Sheet #44: Visits to Employers,” the DOL states “WHD does not typically disclose the reason for an investigation. A full version can be found here: http://www.dol.gov/whd/regs/compliance/whdfs44.pdf
So what can you expect when the DOL shows up without an explanation? Here are four steps to take prior to a potential DOL meeting:
- Host an opening conference with investigators and employer representatives – be sure to engage your employment counsel
- Review leave records typically for a two year period – contact your leave administrator as soon as possible, if applicable, so they can assist in gathering this information for you
- Conduct interviews with a “representative number” of your employees – this will require some preparation with the staff that is chosen
- Organize a closing conference to discuss the results of the investigation – again, you may want to engage your employment counsel here as well
Since FMLA is a Federal entitlement the DOL takes it very seriously when they think an employer is attempting to interfere with an employee’s right to take leave or worse, terminate an employee who was using FMLA protected time!
What can employers do to help avoid the DOL visit?
Train your front line mangers! This was another message I heard loud and clear from the DOL Branch Chief, who stated “Human Resources has everything perfect, but front line managers are not aware.” Be sure your managers understand the requirements of the FMLA. Stress the importance that prior to taking any adverse employment action, they must do their homework to determine if there is any potential FMLA overlap between the adverse employment action they are contemplating and FMLA protected time. Even if the adverse employment decision has nothing to do with their FMLA claim, it can get tricky if the employee has an approved FMLA leave. If you have outsourced your leave administration, managers should be trained to contact the leave administrator to ensure managers have all the facts around the employee FMLA leave.
I would like to hear from you if the DOL has already knocked on your door. What was the outcome? As always our team of Sedgwick experts would be happy to assist you in this area.
Director National Technical Compliance