In a February 8 announcement the U.S. Department of Labor’s Wage and Hour Division (DOL) stated its intent to place focus on wage and hour compliance, including minimum wage and overtime payments, harassment and retaliation claims, interference of Family and Medical Leave under the Family and Medical Leave Act (FMLA), and the misclassification of employees as independent contractors for workers in the warehouse and logistics industries.
The DOL cited the “enormous strain” on the warehouse and logistics industries as the reason for the heightened action, which they intend to use to protect the rights of warehouse workers, delivery drivers and truck drivers, in addition to others.
Family and Medical Leave Act
Special attention should be paid by employers who are covered by the FMLA. The FMLA requires employers to provide eligible employees with unpaid, job-protected leave for family and medical reasons. FMLA applies to employers who have at least 50 employees in 20 or more workweeks in the current or preceding calendar year. Employee eligibility requirements include having worked for the covered employer for at least 12 months and at least 1,250 hours during the 12 months before the leave.
Next Steps for Employers
In light of the DOL’s plan for increased enforcement, employers should review their FMLA policies and procedures, including ensuring that they have and are using the most current FMLA forms.
Of significance is the FMLA’s recordkeeping requirments which requires employers to ensure that they have accurate records of:
- Basic payroll and identifying employee data;
- Dates FMLA leave is taken by FMLA-eligible employees (leave must be designated in records as FMLA leave), including the hours of the leave, if FMLA leave is taken in increments of less than one full day;
- Copies of employee notices of leave provided to the employer under the FMLA, if in writing, and copies of all eligibility notices given to employees as required under the FMLA (copies may be maintained in employee personnel files).
- Any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leave.
- Premium payments of employee benefits.
- Records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for designation and for the disagreement.
Records must be kept for or no less than three years and made available for inspection, copying, and transcription by DOL representatives upon request. Records and documents relating to medical certifications, recertifications, or medical histories of employees or employees’ family members created for purposes of the FMLA must be maintained as confidential medical records in separate files/records from the usual personnel files.
In addition, employers should ensure that frontline managers and others responsible for administering leaves have been trained on the employer’s policy and procedures for FMLA.