Under the Family and Medical Leave Act (FMLA), employers with 50 or more employees must provide eligible employees with a leave of absence for certain qualifying reasons, including an employee or family member’s serious health condition. Although the U.S. Department of Labor (the “DOL”), the government entity responsible for enforcing the FMLA, has always had the authority to investigate employers for FMLA compliance, the agency recently announced that it intends to increase the frequency of on-site investigations. Employers subject to the FMLA should take steps to avoid the risks associated with such investigations.
The Investigatory Process
The DOL has the authority to investigate any employer subject to the FMLA. It is not always obvious how the agency selects which employers to investigate. Most often, the DOL initiates an investigation in response to an employee complaint or a series of complaints. In other situation, the audit may be the result of a focus on certain industries or geographic areas.
The audit process the DOL employs varies. The investigator may call the employer in advance to schedule an appointment, or may instead arrive at the worksite without prior notice.
Additionally, the investigator will likely ask to see documents, including the employer’s FMLA and related policies. The DOL is particularly concerned about rigid attendance policies that do no make exceptions for FMLA-related absences, such as “no fault” attendance policies. The investigator will likely also review other documents, such as leave paperwork and payroll or timekeeping records.
Finally, the investigator may interview employees. If so, the employer may have some discretion in identifying the appropriate representatives and/or other employees who may have relevant information. And, the employer can participate in interviews of its representatives or managers. It can also explain to employees the investigatory process so that employees understand the importance of being truthful and concise.
The Final Conference
Following the investigation, the investigator may initiate a final conference. The purpose of the final conference is to provide the DOL the opportunity to identify any compliance issues it identified during the audit and to propose solutions, which may include changes in an employer’s practices. The DOL may also issue payment of fines or settlements to certain employees. While the employer is not obligated to commit to the DOL’s proposed plan, the final conference gives the employer a general sense of the legal claims the DOL may pursue against it if the entities are not able to reach a resolution.
If the employer and the DOL are not able to resolve issues in the final conference, the DOL may pursue a lawsuit against the employer. In addition, individual employees may file a civil claim against the employer, even if the DOL and the employer are able to resolve issues. In the worst cases of “willful” violations, the employer may face criminal penalties.
Obviously, the best way for an employer to reduce the risk of an FMLA investigation is to take steps in advance to prevent it. First, employers should conduct self-audits to ensure their FMLA practices are legally complaint. The audit should include reviewing applicable policies, ensuring posters are appropriately displayed, and reviewing FMLA documentation, which should be stored separately from general employee personnel files.
At the same time, California employers must be aware of additional or different obligations that exist under the California Family Rights Act (CFRA), the state’s FMLA analog. Because DOL investigators may not be familiar with the CFRA, employers must be prepared to explain when the CFRA requires their practices to differ from FMLA requirements. For example, while the DOL has a model medical certification form most employers require employees to complete to authorize FMLA leave, the form does not comply with CFRA requirements.
Next, employers should ensure they have effective internal complaint procedures to address complaints or questions about leave policies and practices, including FMLA leave. This step may help employers resolve FMLA-related issues before employees complain to the DOL. Employers can also reduce the risk of complaints by ensuring managers and other personnel are trained on administration of FMLA and related leaves.
Of course, sometimes investigations are unavoidable. In that case, employers should take steps to manage the investigation and protect employee privacy. For example, employers should train supervisors and managers to properly to respond to an unannounced visit from a DOL investigator by asking the investigator to schedule an appointment with the correct employer representative. This simple request will give the employer the opportunity to properly compile the requested information and to seek legal advice if it feels such advice is necessary.
And, while the employer should be polite to the investigator, it should not hesitate to ask specific questions about what information the investigator needs and why. Doing so ensures the investigator has access to the necessary documents and information, but it also prevents the employer from providing confidential or private employee information that is not necessary to the investigation.
Of course, participating in an FMLA investigation is a challenging and complex process. For this reason, many employers choose to work with legal experts who can help them navigate the process and make appropriate strategy decisions.