5 on-site FMLA investigations gone wrong

From HR benefitalert.com May 2014:

If you still need more convincing the DOL will be ramping up its FMLA enforcement and paying more visits to firms with dubious administrative processes, these real-life examples should help.

As you know, the DOL recently announced it would be increasing its on-site visits regarding FMLA investigations, a tactic the agency had seldom employed in the past.

The result: An increasing number of unprepared companies are paying costly settlements, fines and penalties for not being in compliance with the FMLA.

Here are five companies that now know firsthand just how serious the feds are about FMLA enforcement:

1. The problem with asking for too much info

When manufacturer Hawker Beechcraft, Inc., asked for too much medical info during the FMLA certification process, the DOL stepped in. According to the agency, Hawker employees who failed to provide their complete medical histories in a timely manner were terminated.

And, according to the DOL, requiring employees to provide this excessive medical info effectively discouraged some workers from applying for FMLA in the first place, the DOL said.

What it cost the company: Hawker reinstated one terminated employee and paid out $45,000 in back wages. It also paid out $3,800 to two other terminated employees.

2. Full-time staffer moved to part time

The FMLA regs are very clear about this: When an employee returns from FMLA leave, the company is required to reinstate that employee to his or her old position or an equivalent one … something the Houston Ear, Nose & Throat Clinic, LLP, didn’t even attempt to do.

According to the DOL, the Texas-based medical provider placed a full-time worker returning from leave in a part-time position, without the same benefits the staffer had previously. Houston was also charged with failing to keep proper records and failing to have a policy in place that reflects the most recent changes to the FMLA.

What it cost the company: Houston was ordered to reinstate the employee to the previously held position and pay $17,390 in back wages and other expenses.

3. No notification = non-compliance

When a former Big Lots employee alerted the retail chain of her need to take time to care for a seriously ill child, the company failed to notify her of her FMLA rights. Then, Big Lots fired her for the time she missed even though that time would’ve been protected under the FMLA.

What it cost the company: Following a DOL investigation, Big Lots agreed to pay $8,787 to the terminated worker. Plus, the company had to alter its internal policy to screen employees for FMLA eligibility.

4. Failed to inform worker of certification rules

A DOL investigation against Caddo Parish Commission found that although the municipality initially approved an employee’s FMLA request, it failed to allow that worker to return after a short absence.

The DOL said Caddo didn’t inform the employee of the organization’s need for a completed fitness-for-duty medical certification and allowed his FMLA entitlement to run out. Then, when the employee didn’t return to work on schedule, Caddo Parish fired him.

What it cost the company: Caddo agreed to pay $13,097 in back wages and reinstate the wrongfully terminated employee to the former position.

5. ‘In loco parentis’ workers eligible, too

Under the FMLA, workers standing “in loco parentis” — those individuals acting in the place of a parent — are entitled to the protections of leave in all FMLA-qualifying situations. Regardless of this rule, DNA Diagnostics Center terminated an employee when she took time off to care for her seriously ill niece. That employee had been standing “in loco parentis” for her niece at the time she took leave.

What it cost the company: DNA settled the lawsuit for $25,000, which included back wages as well as liquidated damages.

A taste of what’s to come

If you think the DOL’s FMLA enforcement efforts are intense now, they’re only likely to get worse. That’s because the agency’s newly appointed FMLA branch chief recently said the DOL plans to roll out more on-site audits where firms are placed under greater scrutiny. So now may be a good time to consider a self-audit of your company’s FMLA administration processes.