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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

Massachusetts’ Superior Court Judge Rules Recording in Workplace Admissible

February 19, 2025
The Massachusetts Superior Court found that Massachusetts’ wiretap statue does not bar employers from using allegedly illegally obtained recordings in civil proceedings. In a recent case, an employee claimed she was forced to resign. Plaintiff’s coworker recorded an argument between the Plaintiff and her supervisor without her consent and shared it with supervisors. The employee then sued for discrimination and retaliation, along with two counts for violation of the wiretap statute. Massachusetts is a two-party consent state but, in this case, it was found that the consent of only one party was needed because nothing in the Wiretap Statute bars the use of an allegedly illegally obtained communication in a civil proceeding. The court found that the provisions about the use of illegally obtained communications in evidence are limited to criminal trials. However, depending on the court, results may differ, as this recording was central to proving and/or disproving the Plaintiff’s claim, and as such, the recording was indispensable as a piece of evidence. Issues with unauthorized recordings have been arising all the time in civil proceedings because recording devices are everywhere, whether they be a cell phone, laptop or other recording device. This ruling is good for employers, as if there is an otherwise inadmissible recording that is made that disproves an employee’s claims, it can be admissible as evidence if meets the same scenario above. However, employers must be careful to use these recordings as they may be inadmissible and may not show the same thing that the employer believes in the court’s eyes. This being said, it is prudent to consult an attorney before utilizing a recording for any employment action or in legal action to avoid unwanted consequences. 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.

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