As a result, it is anticipated that in 2016 DOL will continue its more aggressive stance in conducting on-site investigations of employers’ facilities, including a renewed emphasis on recordkeeping compliance, “systemic” violations, and supervisors’ accountability in administering FMLA situations on the front lines and employers must be ready.

What does this mean for employers? If the DOL comes on-site, expect an FMLA check, document requests, and DOL interviews of supervisors and employees.

What records do you need to have?

FMLA requires that employers maintain the following records for a 3-year period:

• Basic payroll information and identifying employee data, including compensation paid to the employee and the manner in which it was determined, as well as all additions and reductions in pay. (Even employers with no FMLA-covered employees must keep these records.)
• A record of dates when FMLA leave is taken by FMLA-eligible employees (time records, requests for leave, etc., if so designated). Leave must be designated in records as FMLA leave. However, leave so designated may not include leave required under state law or an employer plan that is not also covered by the FMLA.
• The hours of FMLA leave taken by eligible employees if in increments of less than 1 full day.
• Copies of all notices given by the employer to employees, as well as any received by the employer requesting FMLA leave. Copies may be maintained in employee personnel files.
• Policies and benefits. Information stored in any form (paper or electronic) that explains employer policies and employee benefits and the payment for benefits.
• Records of any dispute between the employer and an eligible employee regarding the designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.
• Denials. Records clearly showing that exempt employees worked fewer than 1,250 hours in a 12-month period, if leave is denied.
• FMLA-related medical records and documents pertaining to medical certifications, recertifications, or medical histories of employees or employees’ family members created for the purposes of the FMLA.

Neither the FMLA nor its regulations require any specific manner in which records must be maintained to comply with the recordkeeping requirements of the FMLA. The DOL may inspect these records no more than once every 12 months, unless it is investigating a complaint or has reasonable cause to believe there is a violation.

What does an on-site investigation look like?

Most FMLA investigators give advance notice of an inspection, often by phone. However, the DOL has the authority to undertake unannounced employer visits. Employers need to have a procedure in place for handling such a situation, including having a designated person who is prepared to respond to investigations at a moment’s notice.

The on-site investigation generally proceeds in the following steps:

• An investigative conference,
• A records review,
• Employee interviews,
• A final conference, and
• Communication of the results of the investigation.

The investigator may review the employer’s FMLA records, payroll records, and other relevant documents. Part of this review may be geared toward determining whether the employer is covered under the FMLA.

For private employers that hover around the 50-employee mark or have fewer than 50 employees within 75 miles of the particular worksite, that may mean producing payroll records for current and previous calendar years.

If the investigation is the result of an employee complaint, the investigator will also need to examine records that will allow him or her to determine whether the employee meets FMLA’s eligibility requirements.

The employer’s point person should make the records available for inspection and should consult with counsel before providing photocopies or allowing the records to be removed from the premises. The point person should also keep a record of the specific documents reviewed by the investigator.