unsure, discuss compliance of the FLSA with your legal counsel. If you are prepared for an investigation, there will probably not be any assertions of violations. If FLSA violations are asserted by an investigator: 1. Listen carefully to the investigators’s findings and recommendations while recording precise notes. You will not receive a written report of the investigator’s findings. 2. Request the investigator cite to specific statutes and/or regulations supporting the investigator’s position and request copies of such statutes and/or regulations. 3. At the conclusion of the conference, you have four options: 1. • Refuse to comply; • Agree to comply; • Request an extension of time to consider refusing or agreeing to comply; or • Request to schedule a “second level” conference with the WHD District Office management.
While considering your options, remember to your time wisely while evaluating your situation. The first step should be to confer with your legal counsel who specializes in employment law. Inform your attorney that you require prompt assistance in determining
Utility and Transportation Contractor, OCTOBER 2013
whether or not you agree or refuse to comply. Because you have not agreed to comply, Keep in mind that you have not yet promised the WHD that you will achieve compliance; under the circumstances, litigation can happen quickly. The above concerns an employer’s probable options when future compliance is in question. The same options are available when the dispute concerns payment of back wages. The employer should focus on cooperating with the investigation and not leaving the impression that the employer are refusing to pay back wages, but that you question the validity of asserted facts, application of the law, or accuracy of computations. If an employer and his/her advisors prepare compelling arguments and present then to the Assistant District Director, there is a possibility that back wages will be reduced. The issue of owed back wages will not be dismissed unless the employer persuades the WHD District office management that the investigators erroneously asserted violations. Advice for Contractors Investigators do make mistakes and/or the DOL has targeted your company’s industry for FLSA compliance investigations. Investigators sometimes fail to consider all the facts or thoroughly research the law. During the investigation, do not hesitate to ask questions, request time to consider your options, or seek professional counsel with an experienced employment attorney. Even when a case meets one or more of the “potential litigation” criteria, the WHD may opt to decline litigation in order to conserve its resource or for the reasons previously mentioned. Civil money penalties (if warranted) will be assessed, and employees will be notified (via letters) of their private right to sue. The time required to address a WHD investigation is a better alternative than a very inconvenient, time consuming, and expensive civil litigation for the employer. The settling of any compliance issues with the DOL precludes the probability of collective action suits by other similarly situated employees. If you have any questions regarding your company’s potential risk for a US DOL Investigation, you should contact your experienced labor law counsel to discuss.
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