Since financial penalties, in addition to attorney´s fees and lost management time, accompany a great many of these allegations, employers should consider how they can avoid such entanglements, and how they should respond to a DOL investigation should one take place.
It´s fairly easy to see the value of having an organization periodically assess the state of its FMLA compliance, the effectiveness of its compliance procedures, and the knowledge of those key people who bear the compliance burden. This assessment can take into account the basic elements of the employer´s FMLA obligations as well as the procedures to be followed in all relevant determinations.
There are several key questions to consider. For example:
Through internal organization resources, or external legal counsel or consultants, many employers would do well to periodically assess their policies and implementation efforts under the FMLA. This helps to ensure that the organizations are complying with the act and can respond appropriately to protected circumstances involving employees, or to assertions of statutory rights or leave entitlements that might not be well-founded.
When Complaints Arise
Whether or not an employer has carefully reviewed its compliance posture, at some point it may face a complaint that the federal leave statute has been violated in one of several ways. Such allegations may result from denying leave requested by the employee, failing to treat a leave-taking employee in an appropriate fashion (e.g., discrimination or retaliation claims) or for other reasons.
Initially, a few general points should be considered. It may go without saying, but it is quite important to recognize that any communications with DOL investigators should be truthful. As is the case under a great many statutes, misrepresentations in the course of an official investigation may bring more severe complications (including those sanctions applying directly to individual employer representatives) than any alleged violation. Similarly, the employer´s officials should not destroy or hide documents or records relating to a pending complaint and investigation. Again, such actions would seriously complicate the defense of the substantive allegation, and lead to very serious consequences for the employer and individual employer representatives.
Upon receiving an FMLA complaint, the employer should, of course, fully investigate the circumstances. In the case of many sizable employers, human resources representatives will have primary responsibility for such internal investigations and might be assisted in various types of activities by officials at the individual work site or operation at which the complaining individual is or was employed. In smaller organizations, operating officials, themselves, may do the initial background work.
Regardless of who has responsibility for internally investigating the complaint, such activity certainly should be carried out in an expeditious manner. Also, an investigation should be thorough, and the investigator should be open to alternative outcomes as he or she looks into the circumstances at issue. Such fact-finding and analyses should be carried out in a discreet fashion, but assurances of absolute confidentiality in all scenarios should be avoided, since they may not prove to be realistic. Somewhere along the way, it often will be prudent to secure advice and an independent assessment from legal counsel, whose assessment and counsel (as distinct from the actual investigation itself) typically will be covered by the attorney-client privilege.
In some cases, basic FMLA compliance questions will come into play. For example, has the employer posted the required FMLA notices and communicated with the employee as required? There are many recordkeeping obligations under the FMLA, and those typically will factor, to some extent, into many DOL investigations. If a health care provider´s certification is required to justify the employee´s need for leave, has that obligation been effectively communicated to the employee? If the individual potentially may be a "key employee" subject to the rules that could limit reinstatement, was that determination appropriate, and were appropriate disclosures made to the individual? These and other important issues should be analyzed carefully.
Among the first things the employer will want to determine is if the individual seeking FMLA leave is, indeed, eligible to take leave. Is the employer covered by the statute? Does the employee work at a location that would trigger statutory coverage? Has the employee satisfied the "tenure triggers" for leave entitlement under the FMLA?
If the answer to all of these questions is "yes," another fundamental question often will be whether the individual has already used his or her statutorily mandated 12-week leave entitlement. (This inquiry may be of limited relevance if the allegation in the complaint relates to reinstatement, discrimination and/or retaliation.) In looking at the leave at issue, is or was the reason for taking the leave one that is covered by the FMLA, due to a qualifying condition (e.g., is a "serious health condition" present)?
Addressing Specific Claims
The substance of the employer´s communications with the DOL, in the form of position statements or investigatory meetings, clearly can play a pivotal role in the outcome of such proceedings. To the extent the employer´s arguments are consistent with events, the employer, either directly or with the assistance of legal counsel, should attempt to convincingly demonstrate that its actions complied fully with the FMLA. This will vary, of course, with the type of allegations at issue and the focus of the complaint. Thus, when an employee complains that the employer failed to approve the worker´s FMLA leave request, effective responses that demonstrate either that the employee was not eligible for leave or that his or her available leave was exhausted will be beneficial.
As with complaints brought under other employment statutes, comparing how the employer applied its personnel policies in similar situations becomes key. For example, if the FMLA complaint involves a failure to reinstate an employee after he or she took statutory leave, the employer might be able to demonstrate very effectively that other employees who were similarly situated were treated in the identical manner (e.g., the employees were not reinstated due to a facility shutdown or a departmental lay-off). Where the allegations involve terminating individuals who were seeking to use leave (the most common reason FMLA complaints were filed with DOL in FY 2003), effectively demonstrating that the employee was ineligible for the act´s protections, or that the challenged action was taken for reasons wholly unconnected to leave, would be key.
It is hard to generalize about the best approach to defending against the widely varying FMLA leave claims that fill the pages of the court case reporters. However, when called before the DOL or any judicial forum that later may hear a contested complaint, honest and fully prepared employers that can zealously and persuasively substantiate their good faith compliance efforts usually are those that are most successful in turning back allegations of unlawful conduct.
This article was excerpted from the Family and Medical Leave Handbook by Thompson Publishing Group. More information on the Handbook is available at http://www.thompson.com/libraries/wagehour/time/index.html.