Employees can, and do, complain to the DOL about FMLA compliance

All too often, employees unhappy with the way they were treated in relation to FMLA leave get lawyers and file claims in the court system. Employees can also, however, contact the DOL’s Wage and Hour Division (WHD) to file a complaint. Such complaints can trigger an investigation from the WHD.

The WHD does not require an investigator to previously announce the scheduling of an investigation, although in many instances the investigator will advise the employer before opening the investigation. The investigator has sufficient latitude to initiate unannounced investigations in many cases in order to directly observe normal business operations and develop factual information quickly.

WHD does not typically disclose the reason for an investigation. Many are initiated by complaints. All complaints are confidential; the name of the worker and the nature of the complaint are not disclosable; whether a complaint exists may not be disclosed.

Back in May, a state agency/employer learned firsthand how such investigations work. The employer denied an employee’s request for FMLA leave, disciplined the employee, and then terminated the employee. This prompted a WHD investigation, which determined that the employer violated the FMLA.

Following the investigation, the employer reinstated the employee to an equivalent position, including equivalent salary, benefits, retirement plan and accrued leave the employee would have earned had the employer not wrongly terminated, and paid the employee $77,314 in back wages to resolve the violations.

A WHD District Director pointed out that, “When employers deny workers their rights to the FMLA and other protections, they may find it more difficult to retain valued employees and recruit others to operate their businesses successfully.”

In addition to complaints, WHD selects certain types of businesses or industries for investigation. The WHD targets low-wage industries, for example, because of high rates of violations or egregious violations, the employment of vulnerable workers, or rapid changes in an industry such as growth or decline. Occasionally, a number of businesses in a specific geographic area will be examined.

Earlier this year, for example, the DOL launched an initiative with vigorous enforcement of the FMLA in the warehouse and logistics industry, given the impact of the pandemic and supply chain issues.