US Department of Labor Ramps Up Family and Medical Leave Investigations
“We don’t really investigate FMLA violations.” This was the candid message that an investigator with the U.S. Department of Labor shared with me last year, in explaining that wage and hour violations, not violations of the Family Medical Leave Act, were the agency’s priority. But change is coming, and fast. As FMLA Insights reported in late April this year, the tide has turned. The new head of the Department of Labor’s FMLA enforcement, Helen Applewhaite, has announced that in 2014, the DOL will renew its emphasis on FMLA compliance investigations, including on-site employer visits.
Following the retirement of her predecessor, the DOL turned to Applewhaite to lead FMLA enforcement. Applewhaite helped steer changes to the 2009 and 2013 FMLA regulations and is now in charge of developing regulations and providing guidance to DOL investigators. As with the recent investigations of other agencies such as the Equal Employment Opportunities Commission (“EEOC”), the U.S. DOL’s focus likely will be on systemic FMLA issues. On-site investigations will become more common and as part of these investigations, DOL investigators will interview employees to ensure managers are familiar with FMLA requirements.
What should employers do to ensure they are FMLA compliant and ready for an FMLA investigation?
1. Know the Law
For employers with 50 or more employees, the FMLA may require that the employer provide eligible employees up to 12 weeks of unpaid, job-protected leave for family care or medical reasons. Specifically, employees can take leave for the following reasons:
- to care for the employee’s spouse, child, or parent who has a serious health condition;
- a serious health condition that makes the employee unable to perform the essential functions of his or her job;
- the birth of a child and to care for the newborn child within one year of birth;
- the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
- any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or
- to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave can amount to twenty-six workweeks of leave during a single 12-month period).
Qualifying employers should ensure that their employee handbooks include their FMLA policies. Additionally, qualifying employers should review their leave policies when the DOL issues new FMLA regulations to determine whether those regulations require a revision of the employer’s policy. The recent February 2013 regulations, for example, should be included in any documents describing the leave policy. There are numerous requirements for granting leave, both under the FMLA and local and state laws, and as such, employers should ensure that their policy documents provide up-to-date guidance. Finally, managers–in particular, those in charge of leave requests–should be familiar with the FMLA, as it is often the actions or inactions of managers that impose liability on employers.
2. Keep Updated Employee Records & FMLA Documents
Employers should ensure they keep updated records for each employee for at least three years. Specifically, for each employee, employers should maintain records showing the date(s) of the FMLA leave, the amount of FMLA time taken, medical certification forms, and documents showing the employee benefits such as health insurance. In addition, the employer should keep any correspondence regarding the FMLA leave, as well as copies of all notices and policies given to their employees regarding FMLA leave. Employers should also ensure that they are in compliance with the DOL requirement to display the DOL’s FMLA Poster “in a conspicuous place” where employees and applicants can view it. Finally, all the FMLA forms should comply with current FMLA regulations. Employers can easily access these forms on the DOL’s website. If employers are following the FMLA in the implementation of their leave policies, they should already have these documents onsite.
3. Know What to Expect in an FMLA Investigation
Even the most compliant employers should know what to expect in the event of an FMLA investigation by the DOL. The Wage and Hour Division (“WHD”) of the DOL is in charge of enforcing the FMLA. According to the DOL, although there is not a requirement that the WHD investigator announces the initiation of an investigation, in many cases, the investigator will contact the employer to notify them of the investigation. Once employers receive notification of a pending investigation, they should contact an employment attorney to assist and advise them through the process. The WHD usually initiates an investigation because of a complaint. Unlike EEOC investigations, however, the name of the individual who complained, and the nature of the complaint, are not disclosed. According to the DOL’s website, the investigation will consist of the following steps:
- First, the investigator will examine records to determine which laws or exemptions apply. The investigator will review payroll and time records, as well as FMLA records to determine if, for example, the employer is covered under the FMLA. For example, an investigator may try to determine if an employer has 50 or more employees within 75 miles of a worksite.
- Second, the investigator will then interview employees to determine whether the employer is in compliance with the FMLA. These interviews usually take place at the employer’s place of business, but in some cases, they may take place by phone or by mail.
Once the investigator completes the fact-finding portion of the investigation, he or she will ask to meet with the employer and/or a representative “who has authority to reach decisions and commit the employer to corrective actions if violations have occurred.” The investigator will tell the employer if violations occurred and how to fix these violations. If the investigator finds that the employer unlawfully terminated an individual on FMLA leave, for example, remedial steps may include reinstating that that individual, recovering liquidated damages for the employees affected by the violation, and paying civil money penalties, where applicable.
If an employee files a complaint under the FMLA, or assists in the investigation of an alleged violation, they are protected from retaliation. An employer that engages in adverse action against individuals involved in FMLA investigations can be sued for relief, including reinstatement of the individual’s position, or payment of lost wages and other liquidated damages.
For more information on FMLA compliance standards, please visit the DOL’s Wage and Hour Division Website, or call their toll-free information helpline at (1-866-487-9243), available from 8 a.m. to 5 p.m.