By Julie Morris
Recently, the Department of Labor (DOL) published an updated ?FMLA Advisor? together with updated forms. ?Shortly thereafter, the Branch Chief for FMLA, Diane Dawson, reported that the DOL expects to increase the frequency in which it will come on-site during FMLA investigations ? an indication of increased involvement and activity.? More recently, the Senate confirmed five National Labor Relations Board (NLRB) members, providing a full slate of confirmed members for the first time in more than a decade.? This activity is telling employers to be prepared. ?Although it seems like a new power, the DOL has always had the right to conduct on-site investigations, both announced and unannounced, however, until recently it just wasn?t happening. ?Branch Chief Dawson reported the reason for the increase is due to the ease of on-site visits on the investigators. ?Further, she explained that on-site investigations are much more time efficient, as investigators have ready access to records, data, FMLA policies and FMLA forms, in addition to being able to interview employees face-to-face while they review documents. ?Be that as it may, this doesn?t mean every business is going to be on-site audited. The DOL’s national office has instructed its regional offices to identify occasions when it would “make sense” to conduct an on-site investigation.
So the question remains: What does this mean for employers; and what precautions can be taken to reduce the risk of FMLA violations? ?While there is no simple answer or solution, there are some guidelines that start with being proactive and taking the time to understand the issues and your obligations as an employer.
1: Understand the process of an FMLA Investigation.
An investigation can be undertaken for any number of reasons. ?An employee can file a complaint with the federal Secretary of Labor or a complaint can be filed at the discretion of the Wage and Hour Division (WHD).? If selected for an investigation by the WHD, it may be due to a complaint, the industry, or geographically based. ?Notably, the WHD will not likely disclose the reason for the investigation.
Once initiated, the investigator may request a conference during which the procedure will be explained. ?It would be wise for an employer to notify counsel immediately before proceeding with the investigations and be sure to request an explanation of the scope of the investigation, including all laws that might be implicated and what categories of employees are involved. ?The investigator will likely review the employer?s FMLA policy, business records, payroll records, employee handbook, employee policy material, and other relevant documents. ?Additionally, the investigator is likely to conduct private interviews with individual employees.
Finally, when all fact-finding steps are undertaken, the investigator will inform whether violations have occurred and, if so, how to correct them.
2: Policy and Process Review.
When was the last time you reviewed your FMLA policy? ?For many, it?s been years, and that can be problematic. ?It?s important that you have a policy (assuming it applies to your employee demographic), and that it is appropriately worded to reflect the current state of the law as well as your internal practices. Therefore, employers should take a close look at recent leave records (hopefully you have them) and any leave requests or denials, and ensure that they measure up to the written policy distributed to employees. An internal mini audit can go a long way (if properly done) to proactively avoid longer-term pitfalls.? During this process, if you see any violations you can correct or settle them yourself?rather than waiting for WHD to do it for you.
3: Stay Current.
FMLA regulations and case law have changed as of late. ?Thus, it?s important for employers to be on the ball and know what they are and are not required to do. ?The most recent Advisor, effective March 8, 2013 specified updated forms all employers should use, a new ?Notice Poster? to be displayed, and made changes to the section relating to military members and their families.
However, it?s not just DOL updates employers should focus on. ?Recent case law shows more and more federal courts applying the doctrine of equitable estoppel to FMLA claims. ?How does this effect employers? ?The fact scenarios are simple: an employer mistakenly provides protection to the employee under the Act. ?The employer does this through an employee handbook, policy documents, a statement made by a misguided manager, or by simply handing over FMLA leave document forms to fill out to request the leave. ?Even though the employee or the employer is not technically eligible to receive the benefits, because of the representation, albeit mistaken, the employer is estopped from claiming ineligibility as a defense. (See Medley v. Montgomery County, EDPA, No. 2:12-cv-01995, July 17, 2012.)
Additionally, the U.S. Supreme Court?s recent ruling on the Defense of Marriage Act (DOMA) allows each state to decide its own definition of ?spouse.?? Therefore, if an employee is married to a same-sex partner and also lives in a state that recognizes same-sex marriage, the employee would be entitled to take FMLA leave to care for his or her same-sex spouse.
And there?s more?Employers must stay conscientious of the employer?s duty to ?inquire further.? Courts have found that minimal information will trigger an employer?s duty to ask if the employee needs leave and the corresponding duty to seek more information to determine if FMLA actually applies. However, there are no ?magic trigger words.? ?The employee need not say FMLA or ?leave? or ?absence.? ?Rather, the employee must provide sufficient information ?for an employer to reasonably determine whether the FMLA may apply.?
4: Ensure technical Compliance.
Employers should ensure all FMLA forms, documentation, and procedural regulations are complied with. In order to do so employers should:
- Incorporate all eligibility requirements into the written policy.
- Adhere to Notice Poster requirements.
- Use the most current FMLA poster and?forms.
- Create a formal procedure regarding FMLA requests. ?With a procedure in place it is less likely for mistakes to be made along the way.
- Create and use template letters/correspondence to ensure conformity of all employees.
- Have all denial or approval letters in writing. ?Keep a paper trail at all times.
- Use standard and proper certification forms.
- Be aware of and meet all deadlines for requests, denials, and certifications.
- Maintain complete and separate employee FMLA records. This should include payroll data, leaves of absence, specific dates/increments of FMLA taken, copies of signed notices, certification forms, any requests/denials/disputes regarding all leave, benefit documents.
- Have a system in place to quickly assess a requesting employee?s FMLA eligibility.
- Train your managers.? Anyone involved in handling leave requests must understand the company?s obligations and the consequences of a violation.
Smart Tip: ?Put in place a formal system regarding all things FMLA, and have well trained knowledgeable staff that can act as an employer?s first line of defense to any FMLA violation.? FMLA violations can be costly but they can be avoided if proactive steps are taken.