It Won’t Take Sherlock Holmes to Find Compliance Violations
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If I’ve said it once, I’ve said it a thousand times: getting your absence management compliance house in order is a top task you can undertake to save time, headaches, and sometimes cold hard cash. This will never be truer once the U.S. Department of Labor (DOL) completes their recently announced initiative to hire 100 investigators to support the Wage and Hour Division (WHD).

What Does this Mean for Employers?

In case you aren’t aware, 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 because this is a blog, not a novel, let’s stick with 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.

What’s Next, and How Do I Prepare?

It is no secret that we have been in a worldwide pandemic for two years. Given this “distraction,” I’m going out on a limb and guessing that some of you haven’t had the time to updated your policies, review job descriptions, freshen up your training materials, and remain up to date on the ReedGroup blogs. Let me help you out with that last item and provide links to some of our blog posts that can help you get back on track, as well as some offerings from the DOL.

What Employers Should Do

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 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.

However, if you’re looking for a change, maybe you will apply here to be one of those FMLA detectives for the DOL!

What Is ReedGroup Doing?

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

 

Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.

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