A little neighbor girl came up to me and said “Knock, knock.” Of course you know how this goes. “Who’s there? Boo. Boo who? What are you crying about?” This was followed by a 6 year-old’s laughter for the great joke she had told. But if you are an employer “Knock, Knock” is not so funny if when you ask “Who’s there?” and the answer you are given is “U.S. Department of Labor.” Your response is more likely to be OMG!! So the DOL is at your door, what do you do now?
Allen Smith, manager, workplace law content for SHRM, has some suggestions in an article he wrote Surprise DOL Visits on the Rise. According to Smith, and the attorneys he interviewed, the best thing you can do for this situation is to have a plan. This plan needs to include a list of people who need to be notified; typically this will be “corporate officials, HR professionals, in-house counsel and possibly outside counsel.” Of course what do you do if you’re a small business? Then the business owner or manager will be the point of contact. Either way it is helpful that EVERYONE that could be involved has been through a practice session. Smith talked to Alfred Robinson of Ogletree Deakins, a former DOL official. Here are some snippets of the guidance Robinson gave Smith:
- Once on-site, an investigator will present his or her credentials and conduct an opening or initial conference,… the investigator will meet with representatives of the employer, explain the purpose and plans of the investigation
- Management and counsel should carefully review document and interview requests and assess how best to respond, including exploring with the investigator the areas of concern
- a closing or final conference is scheduled with the employer to review the findings. At the final conference, the investigator will review the investigation findings and seek agreement to pay back wages
To get the entire advice you can follow this link and read it verbatim.
One of the other things Smith and his attorney contacts pointed out is the list of documents that the DOL investigator will be looking for. These include things like:
- 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.
Again, read the article to get the entire list. I think it might be a good idea to have a file with these records, at least most of them, ready to go. That way you are prepared.
Attorney Robinson does suggest that employers stand their ground and only supply documents that are actually required by law. These can be found by referring to 29 C.F.R. 516, including Sections 516.2, 516.5 and 516.6. (CFR is the Code of Federal Regulations). Robinson also points out that employee interviews are typically part of the investigation. Employers have the right to be present for interviews with exempt employees, BUT, may NOT be present during interviews with non-exempt employees.
The key to this circumstance is to always treat the investigator with respect. Don’t be confrontational. Let them know you are interested in proper compliance.
Here are the “take aways” for you as an employer:
- Give this some thought
- Develop a plan
- Put together the needed documents so they are available
- Talk to a good employment attorney and have them give you some training on what to do.