The Five P’s of an Unannounced DOL Visit
Department of Labor (“DOL”) inspections are on the rise. Sometimes, advance notice is given as to when an investigator will be arriving; other times, the investigator may decide to make an unannounced visit. When an investigator shows up unannounced and ready to conduct an immediate wage and hour investigation, it can be a nerve-racking experience for any employer. The first thing to do is remain calm and approachable – you do not want to get off on the wrong foot with any federal investigator. The next thing to do? Keep in mind the 5 P’s!
Plan
Okay…this should have occurred before the investigator’s arrival. If there is not a plan in place, then, at minimum, find a point-person (hey, that starts with a “P”, too). Preferably, the point-person will be an executive or high-level supervisor or manager who can make note of the investigator’s requests, show him or her around the work site, and arrange for a private workspace for him or her until firmer plans are in place. After this, move quickly to step #2.
Phone
After the investigator has been greeted and introduced to the point-person, immediately contact legal counsel and the human resources department. Time is of the essence!
Personnel
If an investigator is making rounds on the worksite, chances are he or she will want to speak with employees. You may need to notify personnel of the investigator’s presence in order to keep distractions or inquiries at a minimum. It is important to note that an investigator may demand privacy for hourly employees’ interviews, but the right to privacy belongs to the employee – not the investigator. Employees exempt from wage and hour regulations (“exempt employees”) do not have a corresponding right to privacy. You, as an employer, may insist that counsel or another high-level management employee be present for these interviews.
Papers
An investigator is going to want to review documents – everything from time sheets to employee handbooks to personnel files. It is important to clarify the scope of the investigation early on so that you do not provide more to the investigator than what is asked for. All documents that are produced should be labeled as “confidential and proprietary.” Record what is turned over and keep a duplicate copy.
Protect
It is important to be polite and cooperative with an investigator, but you must also be vigilant about protecting your own interests. While rarely (if ever) the best option, it is possible to demand a subpoena instead of consenting to an investigation. Remember that an on-site investigation must be conducted at reasonable times, in a reasonable manner, and within reasonable limits. When an investigation is unannounced, the records sought may not be immediately available. Employers can request additional time to gather documentation; generally, they are given up to 72 hours to respond to an investigative demand. Keep in mind that an attorney can be present for the entire investigation, help you understand your rights, protect your interests, and work with the investigator to minimize work disruptions. That is why that step #2, phone, cannot happen quickly enough!
Brandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.
This article is intended as a summary of state and federal law and does not constitute legal advice.