Have you ever been audited by the Department of Labor? Most employers know that the DOL can perform a Fair Labor Standards Act audit to determine whether employees are being properly compensated for time worked. What employers may not know is that the DOL also has authority to conduct audits concerning compliance with the Family Medical Leave Act (FMLA). The DOL’s investigation consists of an examination of company records to determine which laws/exemptions apply, an examination of employee records, interviews of management, and interviews with certain employees in private.
For that reason, employers should make FMLA compliance a priority so that they are prepared when the DOL letter announcing an upcoming audit arrives. Failing to make compliance a priority can lead to costly settlements, fines, and penalties. Following a recent FMLA audit of one of my clients, I can suggest the following best practices that will help make sure you are prepared for an FMLA audit beforehand or avoid an audit completely.
Best Practice # 1: Maintain accurate records.
Covered employers must maintain records that include the following information: basic payroll and identifying employee data (name, address, occupation, rate of pay, hours worked each pay period, additions/deductions from wages, and total compensation); dates FMLA leave is taken; hours of FMLA leave used if leave is taken in increments of less than a day; copies of FMLA notices exchanged between the employer and employee; any documents describing employee benefits or employer policies and procedures regarding the taking of leave; and any documents evidencing a dispute between the employer and employee regarding the designation of FMLA leave. Also, don’t forget that you must maintain medical certifications and recertifications as confidential medical records, typically in separate files from the employee’s usual personnel file. You have to retain these records at least three years.
Best Practice # 2: Have a written FMLA policy, and keep it current.
Employers should make sure that they have a policy in place that accurately describes how the company administers FMLA leave and includes all information that is necessary to comply. The policy should also inform employees about how to request leave and of their responsibilities under the law. You should regularly review your policy to make sure that (1) it complies with current federal requirements and (2) the company is following it. The policy should be readily accessible to employees (i.e., in the handbook, if you have one posted).
Best Practice # 3: Train managers and supervisors on FMLA policy.
Once the company has a policy in place, you should regularly train managers and supervisors on their roles in it. Because supervisors have more contact with employees than Human Resources, it is particularly important for supervisors to understand how to recognize when an employee may be eligible for FMLA leave or may be requesting FMLA leave (especially since an employee may not specifically request “FMLA leave”). They also need to understand how to communicate with employees about FMLA leave and the anti-retaliation provisions of the law.
Best Practice # 4: Conduct an internal audit.
An employer may conduct an internal audit of its FMLA policies, practices, and notices to ensure that they are in accordance with current federal requirements. You should examine FMLA records (such as records of employees granted or denied FMLA leave, notices, and medical certifications) to be sure that FMLA determinations are being handled properly, are being properly maintained, and are easily accessible in the event of an audit. Conducting an internal audit also allows you to identify and correct any issues prior to a DOL audit.
Best Practice # 5: Ensure that FMLA notice requirements are satisfied.
Employers must provide certain notices to employees regarding FMLA leave. The DOL has model notices and certifications on its website. You may create your own notices but be sure that they include all the information required by the DOL. The DOL periodically updates its model forms, so employers should regularly check to make sure that the forms you use contain all the current information.
Covered employers (i.e., those with at least 50 employees) should confirm that you have posted a copy of the DOL’s current FMLA poster in a prominent location where it can be readily seen by employees and applicants at each worksite. If you have 50 employees but none of them are FMLA eligible (e.g., no one works at a site with 50 employees within a 75-mile radius), you still have to have a policy and have the poster displayed on site.
If you do find yourself subject to an investigation, don’t panic but make the audit a priority. Once you get the notice, you typically only have a few days to prepare prior to the on-site visit. Take a deep breath and call your attorney. He or she will help you make sure that the appropriate records are collected and organized. You can and should have a lawyer present during the DOL’s visit. Make copies of all records provided to the investigator, be cooperative and truthful while meeting with the investigator, and make thorough notes of the questions asked and the answers that were provided.