Employers brace for in-person investigations over FMLA

DOL budget includes more money for investigators and visits than in the past

By Sylvia Hsieh
The Daily Record Newswire
 
BOSTON — All in attendance sat up and took notice when midway through a three-day conference on employment compliance, a branch chief of the U.S. Department of Labor’s enforcement division said that the agency expects to increase on-site investigations into whether companies are complying with the Family and Medical Leave Act.

“My ears perked up when I heard that,” said attendee Frank Alvarez, a partner at Jackson Lewis in White Plains, N.Y. “It’s an obvious concern for our clients — employers who are already struggling with FMLA administration.”

The annual conference, held in mid-April, was supposed to put at ease the audience of employment managers, human resources professionals, management attorneys and others responsible for compliance with labor laws by spelling out the ABCs of the FMLA — a federal law that sets out exacting procedures on when, how and how much time off a worker can take for personal medical reasons or to care for a sick family member for companies with 50 employees or more.

Instead, the comments by Diane Dawson, branch chief of FMLA and other federal statutes, introduced employers to a new reality of expecting a knock on the door from the Labor Department.

“The idea that they might show up without notice, kind of like OSHA, does cause some alarm for employers,” said Terri Rhodes, manager of education programs at Disability Management Employer Coalition, the San Diego-based organization that sponsored the conference.

The insight into the DOL’s enforcement plans should prompt employers to prepare for a possible visit, lawyers say.

“We have to get our house in order,” said Jeff Nowak, a management attorney and partner at Franczek Radelet in Chicago, a speaker at the conference. “Employers have to better appreciate that these Department of Labor investigators are increasingly going to come on site to review our documents, our data, to talk with our employees, which requires us to be fully prepared at a few days’ notice.”

Stepped-up enforcement
The increase in on-site visits by investigators is in line with a general shift toward enforcement at the Labor Department. The DOL budget includes more money for investigators and visits than in the past.
“This is a noticeable change and a significant departure from how the DOL has operated before,” said Nowak, who noted that the Equal Employment Opportunity Commission has also increased on-site investigations of employment discrimination charges.

Some point out that Dawson, a relatively new branch chief of FMLA who took office a little over a year ago, has already taken a more aggressive approach toward enforcement.

“She wants to make the most of her authority and help employers comply and help employees if they haven’t been handled right,” said Martha Cardi, chief compliance officer and corporate counsel for Reed Group in Westminster, Colo., an administrator of FMLA benefits, who co-presented with Dawson at the conference.

Typically, the DOL does not show up unannounced, but may give only one or two days’ notice before visiting a company, said Casey Kurtz, a shareholder at Littler Mendelson in Pittsburgh, who has already seen an uptick in on-site visits related to FMLA complaints in the past year.

An investigator could be acting on an individual complaint of a FMLA violation or conducting a “directed investigation” that targets certain industries prone to violations, without a specific complaint.
Directed investigations tend to focus on companies with low wage, physical labor and non-union employees, Cardi said.

Employers should have their FMLA policies at the ready and notices posted such that they are visible to employees and job applicants.

In particular, a DOL investigator will be checking to make sure employers’ FMLA policies are up to date with recent final rules that expand military leave under the Act. Those rules took effect in March.
Some employers are worried that an investigation triggered by an individual can turn into a broader review of all of a company’s policies.

“If the DOL looks very closely at individual files, they may find potential concerns that could blossom into a larger systemic investigation,” said Alvarez.

For example, an investigator who visits an employer looking for a wage-and-hour violation could spot a FMLA violation during the visit, said Cardi.

While Cardi does not think DOL intends to turn businesses upside down in search of every violation, she noted that the agency has “an increased budget and investigators trained in all areas so they can pick up any violation they see and run with it.”

An employer may be able to head off an on-site visit by thoroughly cooperating when the DOL calls about a worker’s FMLA complaint, said Alvarez, noting a comment in Dawson’s remarks that one reason
for on-site visits is that they are more efficient for obtaining information.

FMLA compliance still a struggle

Even though most employers have mastered the broad brush strokes of FMLA, filling in the finer details is still a challenge.

“The nature of FMLA is there are a lot of complexities and a lot of counterintuitive rules,” said Kurtz.

A common situation that causes employers to run into trouble is intermittent leave. That comes up when a worker has a condition that flares up at a moment’s notice, such as migraines or asthma.

Employers may suspect an employee is taking advantage of the more flexible time-off arrangement for intermittent leave if the condition, for example, always flares up on a Friday.

An employer that disciplines a worker without determining whether the leave was appropriate can run afoul of FMLA.

“Don’t just deny the leave and discipline the employee,” warns Cardi. “You might find out that a worker who suffers from depression is going to feel worse on Fridays,” at the end of a stressful work week.
Another area of confusion is the procedural maze for obtaining written medical certification for a worker’s FMLA leave, which a worker is required to provide an employer.

“It’s a very detailed process, and there are a lot of don’ts,” said Cardi.

For example, employers sometimes go too far in speaking directly to a worker’s doctor when they have questions about whether a worker’s condition qualifies for leave. FMLA requires a worker to get medical certification from a doctor but limits an employer’s contact with an employee’s health care provider; an employer can only request authentication or clarification of the document.

“There are times when an employer may ask questions that might be perceived as going beyond mere clarification or authentication,” Alvarez said.

Instead, an employer can get a second opinion or ask the employee to provide a new certification.

According to Rhodes, Dawson underscored the importance of training supervisors and updating policies in her comments about the agency’s stepped-up FMLA investigations.

“I don’t mean to scare everyone,” Cardi recalls Dawson telling the audience, “but you need to get your ducks in a row.”

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