In a recent SHRM Online article… Surprise DOL Visits on the Rise… author Allen Smith, manager, workplace law content for SHRM, discusses how important it is for employers to have a game plan in place in case the Department of Labor shows up at their door. Smith also goes through the documents that DOL investigators normally seek in a surprise investigation, as well as tips for standing your ground, details on the investigation process and common employer errors. Here are some excerpts from that article…
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.
Read the Full Article on SHRM Online… Surprise DOL Visits on the Rise