Here Are Steps Employers Can Take to Ensure FMLA Compliance

May 4, 2022

The DOL Is Set to Ramp Up Audits

By Alexander J. Cerbo, Esq.

 

The Department of Labor (DOL) has announced it intends to increase Family and Medical Leave Act (FMLA) audits on employers. Businesses across many industries continue to face scrutiny by the DOL on their FMLA procedures due to an increase in FMLA violations.


Prepare yourself now and give your FMLA procedures a spring cleaning. The following steps are a great way to stay prepared:


Review your FMLA policy. It needs to include eligibility requirements (i.e., the reason for FMLA leave), call-in procedures, an explanation of benefit rights during leave, and much more.


In addition to providing your FMLA policy in your handbook, post it prominently where it can be viewed by your employees and applicants. Keep in mind that if a substantial portion of your workplace speaks a language other than English, you must provide the poster in that language as well.


Review your FMLA forms. Examine all existing forms to ensure they comply with FMLA regulations. The DOL loves to examine FMLA forms during an audit. You will also want to review legally compliant correspondence that may apply to FMLA leave.


Review your FMLA practices and procedures. When doing so, ask yourself: What procedures are used by my managers when an employee reports an absence that may be covered by the FMLA? Do our procedures ensure that all requests for leave,regardless of whether “FMLA leave” is expressly requested, reach the appropriate manager or HR? Do we have procedures in place for contacting employees while they are on FMLA leave? All these questions and others are important to keep in mind.


Also, be sure to maintain all employee data the DOL will want to see. Keep in mind the DOL tends to conduct broad record requests, so you will want to make sure your recordkeeping is consistent with all regulations and requirements. And remember: all FMLA-related documentation, such as above, must be kept for a minimum of three years and be kept separate from an employee’s personnel file.

Train, train, and train! Train your employees on all things FMLA! For most companies, managers are the first line of contact. If they are not comfortable with proper FMLA leave procedures now, this may create issues later on. You will greatly reduce the risk of a potential FMLA violation in the future by training now.


FMLA audits are not cut and dry and need to be taken seriously to avoid any potential violations. Lastly, do your managers understand how FMLA, PFMLA, and ADA intersect? They should.

Taking the proper steps now can help make a DOL audit go more smoothly.


Alexander J. Cerbo, Esq. is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; acerbo@theroyallawfirm.com

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July 14, 2025
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Remote Workers and the WARN Act

July 9, 2025
Background: The e-commerce website Zulily liquidated in May 2023 and laid off its entire workforce by the end of 2023. While in-person workers at Zulily’s Seattle headquarters and fulfillment centers in Ohio and Nevada received 60 days’ notice or pay under the Worker Adjustment and Retraining Notification (WARN) Act, remote employees were not given any notice or pay. Four remote workers—two based in Washington and two based in Ohio—filed a class action lawsuit claiming that this was a violation of the WARN Act and state wage laws. The workers argued that because their roles were assigned to corporate offices or fulfillment centers, they should have been considered “affected employees” under the WARN Act when those sites closed. In a decision that could signal a significant shift in how the WARN Act applies to remote workers, the federal judge refused to dismiss the workers’ claims.  Key Legal Questions 1. Do Remote Workers Qualify for WARN Act Protections? The core of the dispute centers on whether remote workers can be considered part of a “single site of employment” that closed or experienced a mass layoff—terms that define whether the WARN Act’s notice requirements kick in. 2. Are WARN Act Damages Considered “Wages”? The Plaintiffs also brought state wage claims, arguing that the pay they would have received with proper WARN Act notice should be considered unpaid “wages” under Washington law and Ohio law. What the Court Decided: Judge Kymberly K. Evanson rejected the company’s motion to dismiss the case. Finding that Zulily’s argument that remote employees do not work at a single site with 50 or more workers and thus aren’t covered, was a factual question not suitable for early dismissal. Prior cases support the idea that even home-based employees may be “affected employees” if tied to a central worksite that shuts down. The court also found that if the WARN Act applies, then the Plaintiffs could plausibly claim that Zulily withheld “wages” owed under Washington and Ohio laws —opening the door to potential double damages and attorney fees. The Plaintiffs haven’t won their case; the court’s refusal to dismiss the claims allows them to move forward to discovery and potentially class certification. If they succeed, the case could set a precedent requiring companies to treat remote employees as part of larger employment sites for WARN Act purposes. With remote work here to stay, courts—and employers—will need to grapple with what "site of employment" really means in the 21st-century workforce. For employers, the message is clear: remote doesn't mean exempt. As the legal framework catches up with modern work arrangements, companies must tread carefully when making large-scale employment decisions. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.