Based on information provided informally during DOL investigations, the DOL is directing investigators to insist on production of additional information from employers particularly with respect to payroll practices.
There is a new format for the long-itemized list of information DOL seeks in an FMLA investigation. Take, for example, this laundry list of requests I received from DOL earlier this year in an F-M-L-A investigation:
- Who oversees day-to-day operations?
- Who makes final operation decisions?
- Who sets rates of pay?
- Who makes payroll decisions (how and when employees are paid)?
- Who has the authority to sign payroll checks?
- Other branches and addresses
- Gross earnings for 2020, 2021, 2022, and year to date
- Number of employees at this location
- Number of employees company wide
- Number of salaried employees
- Number of hourly employees
- Number of minors employed between ages 16 to 18
- Number of minors employed under the age of 16
- Is the pay period weekly, bi-weekly, etc.?
- What is the 7-day designated pay week?
- What day is pay day?
- Do employees receive a lunch break?
- Length of lunch break
- Do employees receive any other breaks?
- Duration of other breaks?
- Are breaks paid or unpaid?
- Are there any collective bargaining employees?
- Do employees receive paid holidays? (explain)
- Do employees receive paid sick leave? (explain)
- Do employees receive paid vacation? (explain)
Anyone know what these wage and hour questions have to do with FMLA?
Apparently, DOL investigators have been told to collect more information and investigate further, even in FMLA cases. In these matters, investigators are expected to push for payroll information, even when the FLSA is not implicated in a complaint. The goal? To leave no FMLA or FLSA stone unturned.
Insights for Employers
BIG. RED. FLAGS. all over the place here. When the DOL comes knocking with an FMLA audit, identify a strategy. Do you have answers to the above questions that you are prepared to defend in an audit? If you don’t have the answers, add this task to your early 2025 to do list.
Make an FMLA self-audit a priority for your workplace in the New Year. Your self-audit should focus on the following:
- Conduct a thorough review of your FMLA policy.
- Important compliance alert: the DOL will review an employer’s FMLA policy and all of its FMLA forms to ensure they are up to date.
- As to your policy, is it up to date? If you have an employee handbook, is your FMLA policy included (along with the contents of the FMLA poster)?
- Moreover, does your policy incorporate issues such as:
- eligibility requirements; the reasons for FMLA leave;
- the definition of your 12-month FMLA leave year;
- requirements for bonding leave/placement in foster care or adoption;
- your call-in procedures; substitution of paid leave;
- the employee’s obligations in the FMLA process;
- medical certification process;
- explanation of intermittent leave;
- benefit rights during leave;
- fitness for duty requirements;
- outside work prohibitions during FMLA leave?
- Adhere to the Employer Posting Requirements. In addition to posting your FMLA policy in your handbook, employers also must post the DOL’s FMLA poster “prominently” where it can be viewed by employees and applicants. If a substantial portion of your workplace speaks a language other than English, you must provide the poster in that language.
- Ensure your FMLA forms are legally compliant. Examine all existing FMLA forms to determine whether they comply with FMLA regulations. A technical violation of the FMLA can be costly, so employers should ensure that their FMLA forms (Notice of Eligibility and R&R Notice, certification forms, Designation Notice) are all up to snuff.
- Prepare legally compliant FMLA correspondence. In addition to the forms above, be sure to put in place and review legally compliant correspondence regarding:
- certification,
- recertification,
- failure to provide certification,
- insufficient/incomplete certification,
- employee’s return to work,
- second/third opinions.
- Conduct a comprehensive audit of your FMLA practices and procedures:
- What procedures are used by managers when an employee reports an absence that may be covered by the FMLA? Are they asking the correct questions to determine whether FMLA applies? (See a previous postthat recommends several intake questions.)
- Do the procedures you follow ensure that all requests for leave, regardless of whether “FMLA leave” is expressly requested, reach the appropriate manager or Human Resources?
- How are you calculating increments of intermittent leave (and are you following the regulations in calculating FMLA leave?)
- Are you complying with the FMLA regulations when seeking medical certification, curing certification, contacting health care providers to clarify certification, and seeking second and third opinions?
- Are you properly designating FMLA leave and providing timely notice to employees of the designation?
- Are you seeking recertification within the time periods allowed by the regulations and you’re not being overzealous in seeking recert in violation of the rules?
- Do you have compliant procedures for contacting and checking up on an employee while he/she is on FMLA leave?
- Are you following the regulations’ very specific guidelines for seeking fitness-for-duty certifications from employees returning from FMLA leave?
- Clean up your recordkeeping now. Are you maintaining all the data DOL will be looking for, and are your data accurate?
- Employers should have ready their employees’ identifying information,
- their payroll data,
- date(s) of FMLA leaves,
- FMLA hours/days/weeks taken,
- copies of employer and employee FMLA notices, certification forms, benefit documents, and disputes about designation of FMLA leave.
- Train your employees!
- Over the years, the DOL has picked up on one important fact: your managers do not know your FMLA policy and leave procedures.
- There are far too many examples of employers who have shelled out a whole lot of money because their manager said something foolish about FMLA.
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