Don’t panic; follow some tips to survive an audit of your family leave policies, procedures.
A Family and Medical Leave Act (FMLA) audit could be in your organization’s future. The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) receives more than 1,000 FMLA-related complaints per year, and many of these have uncovered violations; so increasingly the agency is on high alert. Read on to learn about what can trigger a FMLA audit and what you can do to make the best of a challenging situation.
An audit can be triggered by a complaint filed by an employee with the DOL or a request by the agency. Most frequently, DOL focuses on situations where an employer has racked up multiple violations.
The notice of intent regarding an audit generally comes through standard mail. While the letter may not come on department letterhead, it will always include the investigator’s contact information and details about when DOL plans to send this person to your office. The letter may or may not include specifics about what you should expect; however, you can inquire about this before the audit date. Before confirming the notice or reaching out to DOL in any way, however, you should contact your legal counsel or an outside attorney with FMLA expertise.
You may be able to avoid the onsite investigation by having a phone discussion about what the situation is and how it could be resolved prior to the in-person visit. Toward this end, have a prepared statement that details your side of the story and what happened with a particular employee or situation. Be candid, but include any information that supports your case.
Work with your attorney to identify various documents that may help resolve the situation. Have your FMLA leave policy laid out in detail, step by step. Have all relevant forms and documentation handy, but only provide what the investigator requests. Consider creating a spreadsheet of employees’ names, leave approvals and denials, and information on second and third opinions to verify serious health conditions.
If the onsite investigation can’t be avoided, start by preparing everyone involved with the leave management process—including administrators, managers, and others. Identify for them what information they will be expected to supply and help them prepare as needed. Get everyone on the same page, and make sure managers can accurately explain what they do when an employee asks for FMLA leave. Have a point person who will answer questions at the initial investigative meeting, and ensure that this person knows the procedures inside and out.
The good news is that this whole process seldom lasts more than a day if you are organized and prepared. As part of the closure, DOL may suggest a settlement agreement; but the agency generally doesn’t issue a closure letter. The Employer’s Guide to FMLA from the DOL may help answer additional questions you have.
To increase your confidence in your processes and reduce the risk of a DOL investigation, you may want to consider conducting FMLA self-audits. By checking that your policy is written in a way that promotes compliance with the law, that your processes are consistent, and that your documentation is adequate, you can identify any potential gaps or problems and address them promptly.
