Author: Melissa Burdorf, XpertHR Legal Editor

August 9, 2013

The US Department of Labor (DOL) continues to honor its promise to step up its FMLA enforcement efforts, finding several employers in violation of the FMLA. In order to avoid being the subject of the DOL's next press release, HR should be proactive and continuously audit their FMLA policies (avoiding off-the-shelf policies) and FMLA-related forms, letters and practices to ensure compliance with the FMLA and its regulations. To be properly prepared if the DOL comes knocking, HR should also get familiar with the DOL investigation process, including how to handle on-site visits, how to respond to written requests for information and how to handle employee interviews.

During the past several months, the DOL has announced several settlements with employers from diverse industries, such as:

In those matters, the DOL found the employer violated the FMLA by:

  • Failing to reinstate (or properly reinstate) an employee returning from FMLA leave to the same or equivalent position;
  • Interfering with an employee's FMLA rights by discouraging the employee from applying for FMLA leave for fear of reprisal or loss of employment; or
  • Improperly handling of the FMLA medical certification process.

While the DOL's settlements in these investigations did not end in huge monetary fines to the employer, the cost of compliance is hefty. For example, the DOL found Presbyterian Hospital had wrongfully denied leave to almost a dozen eligible employees and had improperly handled the medical certification process. As a result, Presbyterian signed a settlement agreement which sets forth no direct monetary fine but requires it to:

  • Correct the wrongful denials of FMLA leave and provide FMLA leave benefits to future eligible employees;
  • Provide FMLA training to managers;
  • Update its FMLA and absence policies regarding call-in procedures when an employee needs to take FMLA leave;
  • Provide proper advance written notice of medical certification requirements;
  • Eliminate the annual automatic renewal of FMLA medical certification requests which do not stem from a leave request; and
  • Various additional requirements.

The expense of this mandatory compliance can far outweigh a courtroom case.

While the DOL's investigation may originate from a single employee's complaint, it can quickly expand to include other employees or to address other employer practices. For example, the DOL's investigation of T.G.I. Fridays stemmed from one employee's complaint regarding the restaurant's failure to properly reinstate the employee. However, during the course of its investigation, the DOL determined that T.G.I. Fridays' FMLA policy and practices were in violation of the FMLA. The end result: T.G.I. Fridays not only had to pay the single employee $1,455 in back wages but also had to change its company-wide FMLA policy, affecting employees in over 270 company-owned locations. The oversight will likely cost T.G.I. Fridays a lot of time and money to ensure FMLA compliance. In addition, the bad publicity is likely to elicit other employee complaints.