| Take preventative measures to minimize exposure: |
| • Check all current and recent (within the last several years) 1099’s and agency vendor agreements – review job duties of those named independent contractors and verify that they should not be classified as employees • Make sure that all job descriptions are current, accurately reflect job duties, and justify exemptions • Review time keeping systems • Employers may round up or round down fractions of hours up to 15 minutes (must be done consistently) • Ensure that payroll records and record keeping procedures are current, accurate, and compliant • Make sure that the time keeping system is convenient for entering all hours worked • Develop a formal program for reporting and resolving employee wage concerns |
| Familiarize Staff In: |
| • Exempt vs non-exempt status – based on law and cannot be altered – non-exempt employees must be paid for all hours worked – exempt employees cannot have deductions based on quality or quantity of work • Overtime and record keeping training – FLSA and state wage laws – wage and hour policies and procedures • DOL inspection procedures – refuse the compliance officer on site until a search warrant is obtained – request 72 hours to meet investigative demands – request interviews and on-site inspection to take place at a reasonable time – obtain outside counsel to help navigate the investigation process – protect confidential information and trade secrets • DOL investigation rights to:decline to provide advance notice of on-site audits – investigate with or without probable cause or consent – inspect payroll and tax records – conduct surveillance, take photos, and collect evidence – conduct employee interviews – issue and enforce subpoenas for records and interviews |
| Designate an Investigation Response Team: |
| • Assign the following roles – team leader – the compliance officer’s main point of contact (usually an attorney or a senior management representative) – opening and closing conference participants – on-site representative to escort the investigator – document production manager – contractor liaison – union liason – interview representative (explains the interview process to employees and participates in management interviews) • Designate a space for the opening/ closing conference, employee interviews, and for the Wage & Hour Division to work |
Author(s)
Stuart J. Oberman, Esq.
Stuart J. Oberman is the founder and President of Oberman Law Firm. Mr. Oberman graduated from Urbana University and received his law degree from John Marshall Law School. Mr. Oberman has been practicing law for over 30 years, and before going into private practice, Mr. Oberman was in-house counsel for a Fortune 500 Company.
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