Surprise DOL Visits on the Rise

By Hedley Lawson
Department of Labor (DOL) investigators are showing up unannounced at company worksites and are seeking to conduct immediate wage and hour investigations according to the acting administrator of the DOL’s Wage and Hour Division during President George W. Bush’s administration.

Often when the DOL appears unannounced, employers are not prepared since the records the DOL may want to see might not be maintained at that location or may not be readily available. That being the case, employers should develop a protocol for what to do if the DOL appears.

Most employers are reluctant to stand their ground at appropriate times; that’s understandable. Robinson added, employers are required to provide what’s in the regulations 29 C.F.R. 516, including Sections 516.2, 516.5 and 516.6. Sometimes investigators will want to take pictures, and employers do have the right to protect its confidential processes, equipment, patents, and business secrets.
Legal professionals have cautioned to think carefully about whether to provide employees’ e-mail addresses or telephone numbers. The Fair Labor Standards Act record-keeping regulations do not require employers to maintain that information for this purpose.

So what do you do if a DOL investigator appears at your work site? First, an investigator will present his or her credentials and conduct an opening or initial conference. During the meeting, the investigator will meet with representatives of the employer, explain the purpose and plans of the investigation, inform the employer of what documents and records he or she will review, provide information on the time period covered by the investigation, advise the employer of whether he or she plans to interview employees and provide other relevant aspects of the investigation’s fact-finding.

Next, 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. It is at this juncture that an employer might be able to convince the investigator to limit the scope of the inspection. Employee interviews are part of most investigations, and a company official or representative is allowed to be present for the interview of an exempt manager, but not for the interview of nonexempt employees.
Lastly, once an investigator has completed the fact-finding, review of records and interviews with employees, a closing or final conference is scheduled with the employer to review the findings.

SO, WHAT DOCUMENTS ARE OFTEN SOUGHT BY THE DOL INVESTIGATORS IN A SURPRISE INVESTIGATION?
  • Records showing the company’s gross annual dollar volume of sales for the past three years.
  • The legal name of the company and all other names used by the company (for example, “doing business as” names).
  • 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.
  • Birth dates for all employees under age 18 who worked during the previous 24 months.
  • 1099 forms and contract documents with any subcontractors at the establishment.
  • The names and telephone numbers of all subcontractors and subcontracted workers on the project.
  • The employer’s federal employer identification number.

    Hedley Lawson, is the managing partner with Aligned Growth Partners, LLC, (www.alignedgrowth.com) and can be reached at 707-217-0979 or via e-mail at hlawson@alignedgrowth.com


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Labtalk May/June 2018