(Guest blog: Allen Smith, J.D., is manager, workplace law content, for SHRM.)
More Department of Labor (DOL) investigators are showing up unannounced at worksites and seeking to conduct immediate wage and hour investigations, says Alfred Robinson Jr., acting administrator of the DOL’s Wage and Hour Division during President George W. Bush’s administration and now an attorney with Ogletree Deakins in Washington, D.C.
Employers shouldn’t be caught flat-footed, Robinson told SHRM Online, adding that employers should have a notification protocol so that the proper people are notified if an unannounced investigation happens. The proper people could include corporate officials, HR professionals, in-house counsel and possibly outside counsel.
“It is important for employers to have a game plan in place for what to do if someone from the Department of Labor shows up at the door,” agreed Paul DeCamp, an attorney with Jackson Lewis in its Washington, D.C., area office and a former administrator of the Wage and Hour Division during Bush’s administration.
“Ordinarily, my recommendation is to have the legal department notified right away,” DeCamp remarked. “With legal overseeing the response, the right person to interface with the agency may be someone from legal, or human resources, or even from operations if that person is sophisticated and skilled at dealing with a potentially adversarial government representative.”
Often when the DOL appears unannounced, an employer is unprepared, Robinson said, noting that the records the government wants to see might not be readily available or at that location.
Other things might be going on, so that the people who need to meet with the investigator are not available, he added, saying that the employer might suggest that the investigator remain in the waiting room and then negotiate a different time to begin the investigation.
The documents DOL investigators seek in a surprise investigation typically are the same ones they seek after sending a notice of a DOL investigation, namely:
Names, addresses and telephone numbers of all business owners and company officers such as the president, treasurer, secretary, board of directors and other corporate officers, along with a company organizational chart.
- The legal name of the company and all other names used by the company (for example, “doing business as” names).
- Records showing the company’s gross annual dollar volume of sales for the past three years.
- A list of all employees with their addresses, hourly rate or salary, job titles, shifts and whether the employer considers each employee exempt from overtime.
- Payroll and time records for the past two years, including a copy of the most recently completed payroll.
- Birth dates for all employees under age 18 who worked during the previous 24 months.
- 1099 forms and contract documents with any subcontractors at the establishment.
- The employer’s federal employer identification number.
- The names and telephone numbers of all subcontractors and subcontracted workers on the project.
The increased use of surprise visits might be attributable to a lack of confidence in those in the private sector and a desire to reap the benefits of taking an employer by surprise, Robinson said. He noted that sometimes DOL suspects that an employer has child labor violations, in which case an unannounced visit is the best option in order to be there when any youth are working and to interview them or take their pictures.
However, a surprise visit is not the best use of DOL’s resources if an employer is not in a position to be cooperative, he stated.
Stand Your Ground
Employers should stand their ground at appropriate times, Robinson added.
“All you are required to provide is what’s in the regulations,” he said, referring to 29 C.F.R. 516, including Sections 516.2, 516.5 and 516.6.
“You do not have to disclose every aspect of the business,” Robinson noted. Sometimes investigators take pictures, and an employer has the right to protect its confidential processes, equipment, patents and business secrets, he added.
“Employers should give careful thought to how much information they want to produce relating to their annual revenues as well as information about individual owners, officers or managers,” DeCamp cautioned.
“If the employer is willing to stipulate that the annual revenues exceed $500,000, then the agency has little or no need for detailed information.”
DeCamp added, “I would also think carefully about whether to provide workers’ e-mail addresses or telephone numbers. The Fair Labor Standards Act record-keeping regulations do not require employers to maintain that information, and I normally take the position that the agency is not entitled to records that the law does not require employers to maintain.”
Once on-site, an investigator will present his or her credentials and conduct an opening or initial conference, according to Robinson. During the meeting, the investigator will meet with representatives of the employer, explain the purpose and plans of the investigation, inform the employer of what documents and records he or she will review, provide information on the time period covered by the investigation, advise the employer of whether he or she plans to interview employees and provide other relevant aspects of the investigation’s fact-finding.
“Management and counsel should carefully review document and interview requests and assess how best to respond, including exploring with the investigator the areas of concern,” said Christine Howard, an attorney with Fisher & Phillips in Tampa, Fla. “Often, an employer might be able to convince the investigator to limit the scope of the inspection.”
Robinson pointed out that once an investigator has completed the fact-finding, review of records and interviews with employees, a closing or final conference is scheduled with the employer to review the findings. At the final conference, the investigator will review the investigation findings and seek agreement to pay back wages, if any are found due and owing, and seek a commitment to future compliance. If an agreement is not reached, the Wage and Hour Division may refer its findings to the Office of the Solicitor for litigation, and employees will be notified of their right to file a private lawsuit.
Common Employer Errors
Howard said a common mistake for employers to make in responding to DOL investigations is “failing to be prepared and have a plan for addressing the inspection or appointing an employee to handle the investigation who has no experience with one. Once notified, an employer should not go blindly into the inspection but should have a plan that serves to get the inspection focused and manageable.”
Employee interviews are part of most investigations, according to Robinson. He noted that a company official or representative is allowed to be present for the interview of an exempt manager but not for the interview of nonexempt employees.
Too often employers “panic, say things they shouldn’t and don’t actually provide what the DOL wants,” cautioned Jennifer Shaw, an attorney with Shaw Valenza in Sacramento, Calif. She recommended that employers be sure to follow the law up front, partner with legal counsel and “don’t be obstructionist.”
DeCamp agreed that employers “should cooperate to the greatest extent feasible, convey to the investigator in every interaction that the employer is committed to compliance and wants to work with the agency to ensure that it is in full compliance, and respond promptly to the agency’s requests.”