HR Management & Compliance

Post Furlough Tips for Employers: Be Prepared for FLSA Enforcement to Resume

The federal government resumed operations this week. As the U.S. Department of Labor’s Wage and Hour Division gets up and running, operations to enforce the Fair Labor Standards Act are likely to resume quickly. Smart employers should brush up on DOL enforcement basics so they’re prepared.

DOL is authorized by the FLSA to investigate and gather information about wages, hours and other employment practices. The agency may enter an employer’s premises to inspect both the employer’s records and the workplace. Additionally, DOL may also speak with employees to determine if there have been any FLSA violations.

Investigations can be initiated either when a complaint is filed, or when a specific industry has been targeted for investigations. When a complaint is filed, WHD assigns a compliance officer to investigate. If an industry is being targeted there is no complaint required to initiate an investigation. In those cases a directed investigation of an industry is launched and local DOL officials determine which businesses to examine.

They look at factors like the resources available for an investigation and the reputation of local employers. Often these directed investigations look at groups of similarly situated employees in related industries. Examples of recent targeted DOL investigated have included the restaurant industry and garment manufacturers.

Tips for Dealing with a WHD Investigation

Many employers find themselves facing a WHD investigation. Being prepared to deal with this reality is important for employers. Being cooperative with investigators and proactive about FLSA compliance before problems arise are important elements of surviving if and when an investigator comes knocking. Here are some additional tips:

  • Be cooperative. Employers are required by law to make information available to DOL during an investigation. There is no benefit to disrupting the investigation or making things difficult for an investigator. Cooperating ensures a timely conclusion to the investigation that is minimally disruptive.
  • Listen to employee complaints. Many investigations are launched as a result of employee complaints. Head this off at the pass by being responsive to internal employee complaints, and makes sure you are objectively evaluating whether or not those claims have merit.
  • Try to ensure you are FLSA compliant. Investigations are much less painful for employers that generally (and genuinely) strive to stay in compliance with the FLSA. There may be mistakes, no one is perfect, but if you are vigilant about compliance it can be much easier to prove that you made a good faith effort to avoid running afoul of wage and hour laws, which can be a helpful defense in the event of litigation.
  • Don’t forget about FLSA penalties. Conducting classification reviews and examining your records might seem like an expensive headache, but consider the alternatives. DOL may assess both back pay liability and liquidated, or double, damages. Plus if individual employees sue they can collect attorney’s fees. Substantial litigation costs are a significant threat.

For a full discussion of DOL investigations and enforcement actions and how to deal with them, subscribers should consult Fair Labor Standards for Private Employers or Fair Labor Standards for Public Employers, at http://hr.complianceexpert.com/