This article series addresses some of the most confusing real world problems surrounding the Family and Medical Leave Act (FMLA). In the last installment, we focused on employees who do not have job restoration rights once they return from leave. In this article, we’ll focus on managing U.S. Department of Labor (DOL) investigations surrounding FMLA leave and interference claims.
Recently, FMLA Branch Chief Helen Applewhaite announced that the DOL is planning stepped-up enforcement of the FMLA, including more on-site visits by federal investigators.
Applewhaite announced that the DOL’s more aggressive stance in conducting on-site investigations of employers’ facilities would include a renewed emphasis on recordkeeping compliance, “systemic” violations, and supervisors’ accountability in administering FMLA situations on the front lines.
For employers, this means that if the DOL comes on-site, employers can expect an FMLA check, document requests, and DOL interviews of supervisors and employees. In order to prepare, here are a number of things employers can do now, before a DOL investigator comes knocking.
FMLA Investigation Survival Tips
Records. What records do you need to have? The FMLA requires that employers 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.
Neither the FMLA nor its regulations require any specific manner in which records must be maintained to comply with the recordkeeping requirements of the FMLA. The DOL may inspect these records no more than once every 12 months, unless it is investigating a complaint or has reasonable cause to believe there is a violation.
Note: In May 2015 the DOL issued new FMLA forms. The new forms contain an expiration date of May 31, 2018. Employers should be using these new forms, copies of which may be downloaded from the DOL website.
What Does an On-Site Investigation Look Like?
Most FMLA investigators give advance notice of an inspection, often by phone. However, the DOL has the authority to undertake unannounced employer visits. Employers need to have a procedure in place for handling such a situation, including having a designated person who is prepared to respond to investigations 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, and
- Communication of the results of the investigation.
The 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 diligent notes about any questions the investigator may ask and the answers that are given.
The investigator may review the employer’s FMLA records, payroll records, and other relevant documents. A large part of this review may be geared toward determining whether the employer is covered under the FMLA.
For private employers that hover around the 50-employee mark or have fewer than 50 employees within 75 miles of the particular worksite, that may mean producing payroll records for current and previous calendar years.
If the investigation is the result of an employee complaint, the investigator will also need to examine records that will allow him or her to determine whether the employee meets the FMLA’s eligibility requirements.
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 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.