The U.S, Department of Labor is stepping up its efforts to audit employers regarding their adherence to the Family Medical Leave Act. If you are not prepared for one of these inspection visits, you could be in for a nasty surprise.
In the last issue we laid out how an employer can stem FMLA fraud committed by employees. In the process, we noted Labor Department on-site audits are becoming the norm, and that the DOL’s chief of FMLA enforcement earlier this summer called 2014 “a pivotal year” for FMLA audits and enforcement.
Key focal points that concern the agency the most include exactly the same type of violations attorneys frequently see employers having difficulty understanding and complying with, noted attorney Cristina Portela Solomon of the law firm of Gardere Wynne Sewell LLP.
Examples include refusing or discouraging FMLA leave-taking for eligible employees. Others involve making FMLA requests or use of such leave as a negative factor in employment actions like hiring, promotions or disciplinary actions.
Experienced labor attorneys say the best advice for employers is – with the assistance of expert counsel – to conduct a comprehensive audit of your company’s FMLA practices and procedures.
When DOL knocks on your door without prior notice, it is to catch you off guard, quickly gather documents to show noncompliance, and conductemployee interviews before you have had an opportunity to prepare them, Solomon warned.
“Employers should have a plan in place in advance of this happening.”
If feasible, you should use business deadlines to reschedule an unannounced DOL inspection for a mutually convenient date and time, she said. That allows you to determine which documents to produce and select employees for DOL interviews who can articulate and demonstrate FMLA compliance.
“The employer’s goals should be consistent communications with the DOL (assign one person from the company to be the company spokesperson); and organization of responsive information and documents,” Solomon said.
Take Action Now
Of course, the best approach is to be prepared long before the DOL inspector shows up on your doorstep. While also stressing the importance of a thorough review by outside counsel, attorney Kelly Petrocelli of the law firm of Barnes & Thornburg laid out the steps you should take immediately.
First, do you have the required FMLA poster up in the workplace, and, is that poster current? DOL issued a revised version of the poster – Employee Rights and Responsibilities Under The Family and Medical Leave Act – in February 2013.
If you have any doubt as to whether your poster is correct, check the bottom right-hand corner to ensure it says “Revised February 2013,” Petrocelli suggests, stressing that if you have a substantial portion of Spanish-speaking employees, you should post the Spanish-version of the poster.
Secondly, are you using the correct forms in administering FMLA leave? And, once again, are you sure that those forms are the most current versions issued by DOL?
In February 2013, DOL issued a revised version of some forms, including the Notice of Eligibility and Rights and Responsibilities (FMLA) – Form WH-381. The revised form has a “Revised February 2013” label in the bottom, right-hand corner.
DOL also has issued revised versions of WH-384 (Certification for Qualifying Exigency for Family Medical Leave), WH-385 (Certification for Serious Injury or Illness of a Current Service Member – for Military Family Leave), and WH-385V (Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave).
Is your FMLA policy included in your employee handbook, and will your policy withstand a review by DOL? For example, does your policy contain all of the items required by the FMLA poster?
Have you adequately addressed all of the other FMLA requirements? You can be sure DOL will carefully review your FMLA policy to ensure compliance, so be prepared.
Are you also confident that your HR department and front-line managers have a full understanding of the FMLA and your FMLA policy, and that they can confidently address situations implicating the FMLA, especially in intermittent leave situations?
It is especially crucial that all relevant managers be thoroughly trained about your FMLA policy because they are who will serve as your first line of defense during an audit, Petrocelli warned.
“You can have a fully compliant policy, use the correct forms, and have the necessary postings, but if you don’t provide adequate training and guidance to your front-line managers it could all be for nothing,” she stressed.