September 14, 2015

In addition to allowing employees to file lawsuits for violations of its provisions, the FMLA permits employees to file administrative claims with the United States Department of Labor. Under the FMLA, the Secretary of Labor has the same investigative authority granted under the Fair Labor Standards Act. 29 U.S.C. § 2616. This provides the Secretary with the authority to:

• Enter and inspect records in places of business;
• Make copies of these records;
• Question employees;
• Investigate facts and conditions as he or she deems necessary;
• Utilize the personnel of the Department of Labor for all investigations and inspections.10

As part of an investigation, the DOL can inspect an employer’s records pertaining to the  FMLA. The Act imposes the same record keeping duties on an employer as the FLSA. Thus, the employer is required to retain records for a minimum period of three years. In addition to those records that the FLSA requires an employer to maintain, the FMLA requires employers to maintain materials containing the following information: the dates on which employees have taken FMLA leave; the hours of FMLA leave where employees have taken leave in increments of less than a day; copies of FMLA notices provided to employees; documents describing benefits and employer practices concerning paid and unpaid leave; premium payments of employee benefits; and, records of any disputes concerning the designation of leave as FMLA leave.11

In connection with an investigation, the Department of Labor also has the same subpoena powers that it does under the FLSA. These allow the Department to issue subpoenas for books, records and the attendance of witnesses. To obtain compliance with its subpoenas, the
Department can bring an action in federal court.

Complaints by employees that are filed with the Department of Labor are received and investigated in the same manner as complaints under the Fair Labor Standards Act. The Wage and Hour Division is responsible for investigating employee complaints. An employee is not required to submit his or her complaint in a particular form. The complaint only needs to be in writing and contain a statement of the facts on which the employee bases his/her claim.12 The Division generally will require that the employee also provide a sworn statement that includes specific information about the alleged violation. At the outset of the investigation, the Division may attempt to conciliate the claim. At the conclusion of the investigation, the Wage and Hour division may request an in-person meeting with the employer in an attempt to reach a settlement
of the complaint.

During 2013, the DOL received 1,634 administrative complaints under the FMLA.13 The complaints fell into the following categories of alleged violations:

• 319 (refusal to grant FMLA leave);
• 212 (refusal to restore to equivalent position);
• 673 (termination);
• 20 (failure to maintain health benefits);
• 410 (discrimination).

Of this total, the Division found that there were no violations in 890 cases, the employee was not covered in 29, the complaint was not valid in 660 and was dismissed for other reasons in 94. The Division, however, found there were violations in 744 of the cases it investigated and it
recovered $1,642,793.00 on behalf of employees.14

If no settlement is reached between the employer and the employee, the Department of Labor may bring an action in federal court to seek remedies for the violations. These cases are litigated in much the same manner as FLSA actions filed by the Department of Labor.

In responding to a notice from the DOL that it intends to conduct an investigation, an employer should be proactive. The employer initially should consider conducting an internal FMLA audit of its practices. (Regular self-audits for FMLA and FLSA compliance is a good way of avoiding investigations all together). Upon receiving notice, the employer should consider the following:

• Thoroughly examining the scope of the alleged violation to determine the parameters of the investigation;
• If the request by the DOL seems to be burdensome or wide-ranging, discuss limiting its scope with the DOL. The time period, the regions of the company and the job classifications at issue can all be addressed with the investigator; and
• Advising all its supervisors and managers not to retaliate against any employees for making a complaint or participating in the investigation.

10 29 U.S.C. §211(a).11 29 C.F.R. §825.500(c)(1)-(7). 12 29 C.F.R. §825.401(c). 13 See Wage and Hour Division Enforcement Statistics, DOL Wage/Hour Division and Printing Industries of America at http://www.printing.org/page/10114. 14 Id.