The U.S. Department of Labor (“DOL”) is pulling an old, rarely used weapon out of the drawer. While the DOL has always been able to conduct onsite investigations of employers’ Family and Medical Leave Act (“FMLA”) policies and practices, it has seldom done so. Now, the DOL plans to increase the frequency of onsite investigations to save time, increase investigators’ access to information, and promote the use of face-to-face interviews with employees.
What should covered employers do now?
- Review your written FMLA policies. If you do not remember the last time they were reviewed, now is a good time. Do they accurately reflect the process your company follows? Do they properly define who is eligible for leave? If your policy says, for example, that all employees who have worked 12 months or more are eligible for FMLA leave, you may be increasing your leave obligations. An employee who has worked for the company for 12 months, but has not worked at least 1,250 hours normally is not eligible for leave.
- Ensure technical compliance. Use the most current FMLA poster and forms. Out-of-date policies or practices increase the likelihood for enhanced scrutiny, and outdated posters can lead to fines. Also, make sure you follow the FMLA’s mandate to keep records related to payroll (even if not related to the FMLA) and FMLA leaves for each employee for at least 3 years.
- Review your template correspondence to ensure it is compliant, e.g., letters confirming when employees on FMLA are due back from their leave. If you do not have templates, consider engaging the assistance of labor and employment counsel to do so. Standard forms reduce the risk of a manager improperly handling a request for leave.
- Train your managers. Anyone who will be involved in handling leave requests must understand the company’s obligations. Refresher courses are helpful, but remember, new supervisors need to be trained from scratch. For example, do your managers know how to recognize a request for FMLA leave even if the employee does not mention the FMLA? Are they familiar with the new regulations on military leave? They are your first line of defense; make sure they are ready.
This move to increase onsite investigations is another example of a hallmark of the Obama Administration; rather than passing new legislation, this Administration focuses on increased enforcement of existing laws. Employers have already felt the brunt of increased scrutiny from the DOL regarding wage and hour misclassifications of employees as independent contractors or exempt workers. In addition, the newest trend is for agencies to spot violations of other laws and alert the agency responsible for that law. Thus, a FMLA audit spawns a wage and hour, I-9, and worker’s compensation audit. Conducting a full audit of your policies and practices, either internally or externally, with the assistance of a competent labor and employment counsel if needed is the best way to identify and correct errors before the government or a plaintiffs’ lawyer does it for you.
Brody and Associates regularly advises management on complying with state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
