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The Department of Labor Announces Intent of Increasing the Number of On-Site FMLA Compliance Investigations

Published:  July 30, 2014

Branch Chief Helen Applewhaite of the U.S. Department of Labor (DOL) recently called 2014 a “pivotal year for Family and Medical Leave Act (FMLA) enforcement.” Applewhaite announced the DOL has goals of increasing its investigators’ access to information and saving time by reviewing employer’s documents and interviewing employees on-site. Therefore, employers may soon find themselves facing broad requests for detailed information about their FMLA administration process with particular attention being paid to areas of frequent violation (i.e., refusing to authorize FMLA leave for an eligible employee, systematic violations, discouraging an employee from using FMLA leave, etc.).

With these warnings in mind here are some tips employers should take now to prepare for the possibility of an on-site FMLA inspection in the future, and of which employment counsel can assist you with implementation:

1)  Conduct a thorough internal audit of your organization’s FMLA policy. Make sure your FMLA policy is up-to-date, compliant with current law, included in employee handbooks, and prominently posted as required by law.

2)  Review all FMLA forms for legal compliance. Examine all existing FMLA forms to determine whether they are compliant with current law.  All forms and correspondence regarding FMLA must be up-to-date to withstand DOL scrutiny.

3)  Examine your organization’s FMLA procedures and practices.  Ensure you have a procedure in place for who should receive FMLA leave requests, how such requests should be dealt with, and how to determine if an employee is FMLA eligible.

4)  Train supervisors and managers.  Managers and supervisors should know the business’s FMLA policy and their role in FMLA procedures.  They should also be able to counsel an employee who may have questions about FMLA leave or at least send them to the correct source for answers.  Managers and supervisors should also be trained in how to handle when a DOL investigator shows up at your business.  Training is a crucial step in avoiding FMLA violations.

5)  Ensure proper record-keeping.  The DOL will likely examine an employer’s records for recurring or widespread failures in the employer’s operation regarding FMLA.  Records should be kept for each employee for at least three years, should be detailed and include dates and amount of leave taken, medical certification forms, and any correspondence between the employer and the employee regarding FMLA leave. Employment counsel may help you prepare for a DOL investigation by conducting a record-keeping audit to flag any areas of non-compliance or places that may need improvement.

If you receive notification of a pending investigation or on-site visit, you should contact employment counsel to guide you through the process of preparing for the investigation and dealing with any DOL findings as a result of the investigation.

If you have any questions regarding the Family and Medical Leave Act or would like assistance in the implementation of any of these tips, please contact any of the attorneys at Royal LLP at (413) 586-2288.