It won’t take Sherlock Holmes to find compliance violations – the DOL is on it

The DOL WHD enforces federal minimum wage, overtime pay, recordkeeping, and child labor requirements of the Fair Labor Standards Act (FLSA). They also enforce the Migrant and Seasonal Agricultural Worker Protection Act, the Employee Polygraph Protection Act, the Family and Medical Leave Act (this is where we come in), wage garnishment provisions of the Consumer Credit Protection Act, and a host of other employment standards and wage requirements.

There is a lot to unpack in that list of their areas of responsibilities, but let’s focus on the Family and Medical Leave Act (FMLA). The investigators from the DOL WHD can conduct targeted investigations to enforce the FMLA and other laws and to ensure employers are compliant with these laws. When conducting these investigations, DOL investigators may visit employers’ jobsites, gather data and records, and even review employment practices and policies.

We have been in a worldwide pandemic for two years, which has made it challenging for employers to find time to update policies, review job descriptions, refresh training materials, and remain up-to-date on the Guardian blogs. Here are some useful links to some resources from the DOL.

• Absence Management Resources
• Posters
• Recordkeeping, Reporting and Notices
• Updated Forms
• FMLA Compliance Assistance Toolkit

These resources and tips are just the beginning. Employers should ensure their policies and procedures are compliant and up-to-date. In reviewing recent lawsuits, our team has found examples where employers have torpedoed their own ship by not having up-to-date policies, as well as situations where employers have saved themselves valiantly by taking the time to have compliant, written policies in place.  A few examples of cases and solid policies are noted below:

Beckerich v. St. Elizabeth Medical Center (September 2021)

• Healthcare workers sought to block the medical center’s COVID-19 vaccine mandate alleging it violated the ADA & Title VII.
• Kentucky federal court denied request because the medical center’s policy provided exemptions and reasonable accommodations.

Thomas Anderson, et al. v. United Airlines (December 2021)

• Fifty-six putative class action plaintiffs sought to halt United’s COVID-19 vaccination program.
• Florida federal court denied request for multiple reasons, including:
  • United’s policy allowed for accommodations and exemptions
  • The plaintiffs either received accommodations, withdrew their requests, or had requests denied for failure to engage in the process or for filing after United’s deadline.

Another example, not COVID-19 related, is Munger v. Cascade Steel Rolling Mills (June 2021).  In this situation, an employee did not follow the required notice procedures when reporting health-related absences, so the absences counted against him, due to an absenteeism policy that afforded employees only a certain number of points. After reaching the allotted number of absentee points, the employee was terminated, per the policy. Once terminated, he filed a lawsuit, claiming violations of the FMLA and other state laws. The employer presented their written policies and evidence that these policies were distributed to all employees. It was only because this reporting policy was well-documented and distributed that the employer prevailed.

Perhaps, if you are still forming your own annual goals for the year, this quick blog will encourage and support you to have ‘Update Policies’ as one of those goals.

Guardian works with its compliance and product teams to ensure we are assisting our customers in meeting their legal obligations. If you are an employer seeking solutions for leave and accommodation administration, reach out to us for more information!