While I take a few days away from the office, here’s a post you may have missed in the past. With the U.S. Department of Labor conducting more investigations, it is more relevant than ever.
But what should you expect when the DOL comes calling for an investigation (either as part of a random audit or a complaint)? First thing you should know is that they typically don’t call first. Instead, you’ll get a letter announcing that they will be coming to your office at a specified date and time and that they want to review some records.
The U.S. Department of Labor has released a Fact Sheet for Employers about visits to employers that the department may conduct. It’s worth a read as a starting point for any questions you might have as an employer.
But beyond that, the department may ask to review specific documents including:
- Payroll records (including payroll journals, time cards, and/or time sheets) for the last two years;
- Lists of all employees considered exempt from minimum wage or overtime rules (and the exemption claimed) and the job descriptions for those “exempt” employees;
- Lists of employees who hold more than one position within your company;
- List of your three major vendors or supplies;
- Records or documents that reflect your gross revenue of your business for last three years (typically, the first page of Rom 1120 of the U.S. Corporation Income Tax Return);
- Federal Tax ID number (“EIN”);
- Names, addresses and phone numbers of all employees (present and former) for you for the last two years;
- Dates of birth, dates of employment and job titles for all those persons under the age of 18 who have worked for you for the last two years.
Now, you might ask, what gives the government the right to ask for this? Section 11(a) of the Fair Labor Standards Act spells it out:
The Administrator or his designated representatives may investigate and gather data regarding the wages, hours, and other conditions and practices of employment in any industry subject to this chapter, and may enter and inspect such places and such records (and make such transcriptions thereof), question such employees, and investigate such facts, conditions, practices, or matters as he may deem necessary or appropriate to determine whether any person has violated any provision of this chapter, or which may aid in the enforcement of the provisions of this chapter.
These types of investigations often given employers very little time to prepare but understand that what is said during those meetings can and will be held against you. So consider consulting with an attorney early in the process who can coordinate the investigation and serve as a conduit between the DOL and you.
And if you don’t already track the information above, be sure to take steps in this new year to do so. Under DOL regulations, these types of records shall be made available “within 72 hours” notice. That won’t give you much time.