Department of Labor Increasing FMLA and FLSA Audits

In February 2022, the United States Department of Labor (DOL) announced plans to increase Family and Medical Leave Act (“FMLA” or “Act”) audits and wage and hour audits under the Fair Labor Standards Act (FLSA), particularly for employers in the warehouse and logistics industries. Despite the announcement’s focus on these two industries, it would be prudent for all covered employers to be on the lookout for increased audit and enforcement activity by the DOL. Here are a few best practices employers should follow if audited under the FMLA:

Understand the FMLA

The FMLA requires covered employers to provide to eligible employees unpaid, job-protected leave for specified family and medical reasons. Group health insurance coverage must remain in effect during this leave period. It’s a complicated law. To avoid costly FMLA violations, employers should have a strong working knowledge of the numerous regulations that interpret and implement the Act.

Prominently Post Notice Requirements

All employers covered by the FMLA must conspicuously post on their premises, in workspaces occupied by employees, a notice explaining the Act’s provisions. Information concerning procedures for reporting alleged violations must also be conspicuously posted. The notice must be prominently posted where it can be easily seen by applicants and employees. Employers can be fined by the DOL for violating FMLA posting requirements.

Define Your FMLA Year

Employers can choose a calendar year to determine FMLA leave entitlement, but the FMLA regulations permit other leave years to be used, including a “rolling” 12-month period. Many employers prefer the 12-month rolling period because it prevents employees from taking more than 12 consecutive weeks of leave. Be sure to select the FMLA year best suited for your organization.

Review and Revise (If Necessary) Your FMLA Policy

If an employer has an employee handbook, it must include an FMLA policy to guide employees regarding their leave rights and obligations. Employers should regularly review their FMLA policy and, if necessary, revise it to ensure it is up to date.

Make Sure FMLA Forms Comply with FMLA Regulations

Review your FMLA forms to ensure they comply with FMLA regulations. The DOL has issued model forms employers can use if they don’t wish to create their own forms.

Train Your Managers

When an employee seeks leave for the first time for an FMLA-qualifying reason, the employee does not have to expressly assert rights under the FMLA or even mention the Act. Consequently, to reduce violations and liability, managers should be trained to recognize FMLA leave requests and how to properly handle them. Knowledge of FMLA policies and procedures is vital for supervisors and managers.

Conduct an Internal FMLA Audit

One way employers can ensure they are ready for a DOL audit is to first conduct their own internal FMLA audit. Audits should include activities such as:

• Reviewing FMLA policies and correspondence for compliance
• Making sure employee leaves have been properly tracked and calculated
• Analyzing your leave certification process for fairness
• Reviewing steps taken to curb leave abuse (including employee privacy rights)
• Ensuring employees receive proper notice of leave rights
• Routinely checking that FMLA records are accurate and complete

Review the Consistency of Your FMLA Processes

Review each step of the FMLA process to determine if it is being implemented consistently. Inconsistent treatment of employees can lead to employment discrimination claims as well as FMLA violation claims.

Ensure FMLA Records Are Maintained for Three Years

Employee FMLA records must be maintained for at least three years. These records include:

• Basic payroll and employee identification data
• Dates/hours where FMLA leave was taken
• Copies of employer and employee FMLA notices
• Copies of documents describing employee benefits or employer policies and practices
• Certification forms
• Premium payments of employee benefits
• Records of any leave disputes between the employer and employee

DOL Audits Under FLSA

These audits will generally review whether employees are being paid all their legally earned wages (including minimum wage and overtime), are safe from workplace harassment and retaliation when they claim their rights, and are not misclassified as independent contractors. The DOL has indicated it will use all tools necessary to ensure workers are protected and properly paid under the FLSA, which includes audits.

All employers, especially those in the warehouse and logistics industries, should be more cautious than ever in guarding their employees’ rights under the FMLA and FLSA. Violations of these laws can be expensive. With the DOL’s announcement that they will be enforcing the FMLA and FLSA more vigorously, this is no time for employers to become lax in their legal obligations. Be prepared.

Want to learn more? Join Paul Kramer, Director of Compliance at WorkForce Software on Wednesday, May 11 for a webinar, “FMLA Best Practices: Support Employee Well-Being and Ensure Compliance.“