What Florida Employers Need to do When the Department of Labor Comes Knocking
While it’s common for the US Department of Labor’s Wage and Hour Division (WHD) to visit a workplace after a complaint is filed by an employee, the fact is that the agency can call on a Florida employer at any time. If the WHD appears at your workplace, here are a few pointers you can use to help you get through the process.
Ask for More Time to Provide Records
It is not unusual for a WHD investigator to show up at your door unannounced. The investigator will provide you with a letter listing certain information and records that it wants you to produce. You can and should ask for time to gather the information and records, and to speak with your wage and hour lawyer about the investigation and about your rights. The length of the any extension of time will depend on the individual agent. It is important that you remain calm and courteous when dealing with the investigator, but firm about needing an extension to respond.
When you speak with the investigator, make sure that you understand exactly what information investigator wants to review. Although the letter provided by the investigator will inform you of all the information requested, it is good to ask about the focus of the investigation, and what made them show-up at your business.
Gather the Requested Records
Based upon the contents of the letter from the WHD and your conversation with the investigator, make the effort to collect relevant documents right away. As soon as you have gathered those records, you should contact a wage and hour lawyer for a consultation.
You should know that the law requires an employer to retain daily time records and records of weekly pay to its employees, among other information. It is the better practice to not provide any records to the investigator at this first unannounced visit. If you do provide information and records, make a list of the documentation you provided, and write down everything you have told the investigator. Before signing any document or written statement, ask the investigator if you can have a copy of the statement before they leave. If the investigator refuses to provide you with a copy, do not sign the statement.
Be Courteous During the Audit
There’s no need to bend over backwards, but you should maintain an appropriate degree of professionalism throughout the WHD visit. Cooperate with the investigator’s reasonable requests, such as speaking to non-managerial employees, and set aside a quiet area for the agent to use as a workspace, if possible. Generally, managerial employees should not provide statements to the investigators without the employer’s permission.
Request a Post-Audit Summary
At the conclusion of the visit, ask the investigator to provide a summary of the findings. You can use the information to inform your lawyer or to consider your options for resolving any violations. A post-audit summary is also useful for doing your own internal audits going forward.
Formal and Informal Meetings
If the WHD determines that minimum wage or overtime provisions of the FLSA have been violated and it demands payment to employees for back pay, you may request a meeting to discuss any errors or other mitigating factors that may reduce or eliminate the back pay. Generally, it is wise to have a wage and hour lawyer represent you at the outset of the investigation, but certainly no employer should meet with the WHD to negotiate a back pay order without legal counsel.
Once you have been subject to an investigation by the WHD, it is not unusual that the investigator will follow-up in the future to ensure that the employer remains in compliance with the law. Since your legal obligations don’t cease when the investigation is over, it is wise to make a plan with you lawyer to implement a self-audit process to ensure continued compliance. A visit by the WHD will be easier the next time around if you have a procedure in place to for internal audits.
These useful tips should give you a general idea about what to do and expect if the WHD pays you a visit, although each case has its differences. There’s always the potential to make mistakes before, during, and after the WHD arrives onsite, so it’s important to work with an experienced attorney that will help you stay in compliance and avoid costly errors. A wage and hour lawyer can guide you through the process, allowing you to focus on the important task of running your business. If you receive a notification that the WHD will be checking in or have any questions regarding your obligations as an employer, please contact the Miami offices of Penichet Law.