Q: I have reason to believe that a former employee is going to file a complaint with the Department of Labor. What should I do?

A: Review your files and start getting ready to respond to requests for information.

In this situation, you have an advantage: you know or at least suspect that a DOL investigation may be coming. In many cases, the first word an employer receives of an impending investigation will be a telephone call or letter from a DOL investigator asking for information. Use this lead time to get your files in order.

If the DOL does get involved, you can expect them to ask for the following:

  • Relevant jurisdictional information. This may include your organization's proper legal name and ownership structure, the number of employees in your organization, the location and number of employees at each location, and total revenue or income figures.
  • Copies of all relevant policies, including your FMLA, attendance, vacation, sick leave, and other leave of absence policies.
  • Copies of all notices provided to the employee regarding FMLA leave, and all correspondence, certifications, and other documents relating to FMLA leave over up to the last three years.
  • The employee's time, attendance and payroll records for up to the preceding three years, including a record of all FMLA leave used by the employee.
  • Records of premium payments for employee benefits.
  • Other items in the employee's personnel file.

Depending upon the nature of the allegations and the DOL's interest in the case, the investigation could expand beyond the complaining employee. In an extreme case, the DOL may conduct an audit of all FMLA leave requests over the last several years. If your files are in disarray, now is the time to get them in shape.

It would also be wise to advise the organization's employment counsel that a DOL investigation may be imminent. When the DOL does make contact, notify legal counsel immediately, and work with counsel to respond to any requests for information.