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Knock Knock, Who's There? The Department of Labor. We're here to investigate your FMLA practices.
By Amy Blaisdell on April 25, 2013 at 8:10 AM

Checklist with boxes and a penIf you think this sounds like a “bad joke,” think again. The United States Department of Labor (“DOL”) has been quite transparent as of late that it is ramping up its FMLA investigatory activities to include unannounced, on-site visits. Although the DOL has historically called employers to arrange on-site visits, particularly for FMLA investigations, the DOL has determined that unannounced, on-site visits is a more effective use of the DOL’s time and resources for both FLSA and FMLA investigations. The DOL’s practice concerning Visits to Employers is described in DOL Fact Sheet #44.

So, exactly what do you do to prepare for the unannounced visitor? 

Fortunately, help is already available and more help is on the way. Below are some steps that you can and should take now:

- Review your FMLA policy and practices to ensure compliance with the latest regulations effective March 8, 2013. In the words of the DOL, if you’ve made no changes since the new regulations became effective, you aren’t compliant.

- Review the DOL’s updated FMLA forms released in February 2013, to ensure that your forms are compliant.

- Schedule training with your managers to ensure that they are aware of the Company’s obligations under the FMLA and understand the FMLA’s non-retaliation and anti-interference provisions. The DOL recently released a PowerPoint presentation on the Family and Medical Leave Act, which is publicly available at: http://www.dol.gov/whd/fmla This is a great start for supervisor training, but you will want to add some information about tips for managers in communicating with their employees about leave, particularly providing notice of leave, as well as certification and recertification obligations.

- Watch for the FMLA Field Operations Manual, which the DOL is very close to releasing. This will be similar to the FLSA Field Operations Manual already available and will be a key tool for your leave of absence team as it will contain the exact information that the DOL’s field investigators use.

- And finally, check this blog for further developments! In particular, the DOL is closely following the Supreme Court’s review of the Defense of Marriage Act (“DOMA”). Since the FMLA already defines marriage with a deference to state law, if DOMA is found to be unconstitutional by the United States Supreme Court, it is almost a certainty that the FMLA will be extended to same sex partners in states that recognize same sex marriage.

Stay tuned for other exciting developments.

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