As a aftereffect of this new administration accomplishment by the DOL, FMLA-covered administration should ensure that they are accessible for a FMLA analysis and accustom themselves with the FMLA analysis process.
DOL’s Wage and Hour Division (WHD) is amenable for administration the FMLA. Administration procedures, modeled afterwards the Fair Labor Standards Act, acquiesce for advisers to adduce FMLA violations by either filing a complaint with the federal Secretary of Labor or bringing a clandestine civilian clothing adjoin the employer. If the agent chooses to book a complaint, the WHD will investigate. Best WHD board accord beforehand apprehension of an inspection, generally by phone. However, the bureau has the ascendancy to undertake unannounced employer visits.
Employers should accept a action in abode for administration investigations, including accepting a appointed actuality who is able to acknowledge at a moment’s notice. That actuality should be able-bodied a in the action that takes abode in DOL investigations, the employer’s FMLA behavior and procedures, and the employer’s procedures for responding to WHD investigations, including an compassionate of aback cooperation with the DOL is required, aback cooperation is usually warranted, and aback the band should be drawn.
Regardless of who the appointed point actuality is for FMLA investigations, administration should booty time to consistently alternation all administration on able FMLA procedures, nondiscrimination, retaliation, changes in the new FMLA rules, and especially, the employer’s own action and procedures for acclamation FMLA requests.
The WHD investigator may appeal a conference, during which he or she will explain how the analysis will proceed. The employer’s acquaintance actuality should appeal that the investigator explain the ambit of the investigation, including the laws that ability be active and what locations and/or categories of advisers will be involved.
The acquaintance actuality should not, however, ask if the analysis arose in acknowledgment to an agent complaint or which agent complained. Administration should accumulate abundant addendum about any questions the investigator may ask and the answers that are given.
The investigator may analysis the employer’s FMLA policy, records, bulk records, and added accordant documents. To prepare, administration should act now to thoroughly analysis FMLA policies, practices, and recordkeeping. This charge accommodate a absolute analysis of FMLA behavior to ensure acquiescence with the latest 2013 regulations, to affirm that behavior are broadcast in agent handbooks and notices, and that the best contempo forms and notices are actuality acclimated (the DOL has all of the best contempo forms and notices acquaint on its website).
Also, don’t balloon the GINA safe anchorage account with all agent medical acceptance forms. (The DOL does not accommodate the GINA account in its medical acceptance form, but one can be begin on HR.BLR.com. For added advice on recordkeeping beneath FMLA, see Chapter 700 of the FMLA Acquiescence Guide.
The employer’s point actuality should accomplish the annal accessible for analysis and should argue with admonition afore accouterment photocopies or acceptance the annal to be removed from the premises. The point actuality should additionally accumulate a almanac of the specific abstracts brash by the investigator.
The WHD investigator will additionally appetite to account advisers apropos the employer’s FMLA practices. Interviews are commonly conducted on the employer’s premises. Advisers should be a that they may (but are not appropriate to) allege advisedly to the investigator after abhorrence of retaliation.
Do not try to ascendancy what advisers say in the account or barbecue them about it afterward. Simply acquaint them that the employer is allied with the analysis and ask whether they are accommodating to be interviewed. Accumulate addendum about which advisers were interviewed. Some advisers may voluntarily acknowledge advice about what was said in the interview. In that event, accomplish abiding to accumulate able addendum of what they say.
When the analysis is completed, the investigator will acquaint the employer whether he or she has baldheaded any violations and, if so, admonish the employer how to actual them. For example, if the investigator concludes that the employer abandoned the FMLA by absolute an agent on FMLA leave, the investigator may acquaint the employer to promptly compute and pay the bulk of aback pay and/or absent allowances owed. The ambassador may alike acquaint the employer to action the agent reinstatement.
If the employer has not already complex acknowledged counsel, now is the time to do so. Admonition will be able to advice the employer adjudge whether to:
An accomplished application advocate can advice the employer counterbalance all these factors in chief how to proceed. Finally, if the investigator finds violations of the FMLA, the employer may charge to change its FMLA behavior and/or procedures to anticipate approaching violations.
If the employer is clumsy to dness the analysis through adjustment negotiations with the investigator, the DOL may sue the employer on the employee’s behalf. If it does not sue, the afflicted agent may accept to do so on his or her own.
Susan Schoenfeld, J.D., is a Senior Acknowledged Editor for BLR’s animal assets and application law publications. Ms. Schoenfeld has accomplished in the breadth of application action and counseling, accoutrement capacity such as affliction discrimination, blameworthy discharge, animal harassment, and accepted application discrimination. She has litigated abundant cases afore the U.S. Cloister of Appeals, accompaniment court, and at the U.S. Department of Labor. In accession to litigating application cases in accompaniment and federal court, she provided training and counseling to accumulated audience apropos employment-related issues. Prior to entering clandestine practice, Ms. Schoenfeld was an advocate with the Civilian Rights Division at the U.S. Department of Labor in Washington, D.C., area she brash federal agencies, drafted regulations, conducted ambassador training courses, and litigated cases for the Appointment of Federal Contract Acquiescence Programs, the Directorate of Civilian Rights, and the Mine Safety and Health Administration. Ms. Schoenfeld accustomed her undergraduate degree, cum laude, with honors, from Union College, and her law amount from the Civic Law Center at George Washington University.
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