What is an FLSA investigation in Florida?

The typical law at issue is the Fair Labor Standards Act (FLSA). This law generally requires Florida businesses to pay employees minimum wage and also overtime pay if their workers work more than 40 hours in a work week. The employment lawyer should also analyze any independent contractors or freelancers or vendors that the business uses and issues a 1099 to, in order to verify that they are properly classified as an independent contractor. This is crucial because if the worker is misclassified as an independent contractor but fails to meet the legal test, then there may be liability for the Florida business due to the misclassification. This is usually caused because the business failed to pay overtime when the worker performed work in excess of 40 hours in a work week.

In Florida, can a DOL investigation involve more than one employee?

Yes, there could be systemic issues if your pay practice extends beyond a single worker. At the very beginning of a Department of Labor investigation in Florida your employment lawyer should immediately explain the process and warn the business to not intimidate any workers or make any threats in any way pertaining to the Department of Labor investigation. This is because even if the underlying investigation reveals 100% compliance with the law, the Florida business may still violate the law if it is deemed to retaliate against employees.

Can the Florida DOL investigator interview my employees?

Yes.  Both current employees and former employees of a Florida business may be contacted by the Department of Labor investigator during the investigation. The Department of Labor investigator will usually ask these employees various questions about how the business operated and how they were paid. If these witnesses provide testimony that is inconsistent with what the employer claims, it could create a situation for liability for the business. It may be human nature for a business owner to attempt to speak with current and former employees to tell them how they should answer questions during a Department of Labor investigation. This would be a serious mistake and should be avoided at all costs. There are very limited things the business can say to employees during the Department of Labor investigation.

Sometimes, Florida businesses even allows Department of Labor investigators into the workplace when they just show up out of the blue. This is because Florida businesses are unaware of what their rights are. The Department of Labor investigators always flash a badge and that usually results in a Florida business owner being fearful and intimidated and thinking the Department of Labor is law enforcement and they have to let the investigator into the workplace immediately. This is not correct.

You do not have to stop your business just because the Department of Labor Wage and Hour investigator shows up and asks to inspect the workplace. To be clear, I’m talking about standard, run-of-the-mill investigations that deal with wages and hours. I’m not talking about an OSHA investigator from the Department of Labor coming onto the worksite because of a fatality.

You might be wondering, how do I respond to the Department of Labor investigation into my Florida business? The very first thing you should do is immediately contact an experienced Florida labor and employment attorney. Handling a Department of Labor (DOL) investigation on your own is generally not wise. You would not handle an IRS investigation without contacting your accountant, would you?

There are important mistakes that many Florida businesses make at the very beginning of a Department of Labor investigation. Oftentimes, the Department of Labor will contact a Florida company and inform it that it’s doing an investigation into the business. The Department of Labor investigators in Florida usually do not tell the business that they should contact an employment lawyer. In fact, many Department of Labor investigators in Florida actually make immediate requests for documents, and often provide a very short timeframe for the Florida business to respond.

Sometimes the Department of Labor requests that documents be provided within only a couple days. This is a huge problem for Florida businesses. Florida business may not even realize that they don’t have to give certain documents to the Department of Labor. This is why it’s crucial that a Florida business bring in an employment attorney at the very beginning of a Department of Labor investigation.

What should a Florida business do at the beginning of a Department of Labor investigation?

Law Office of David Miklas, P.A.

Labor & Employment law - Employers only

What to expect from an employment lawyer during a DOL investigation?

Usually if a Florida business calls an employment lawyer who has experience dealing with the US Department of Labor during wage and hour investigations, the lawyer can help the business understand the investigation process. The employment lawyer can also guide the business through what to expect and what the businesses rights are during an investigation. An employment lawyer will assist the business in gathering the required documents for the investigation and also analyze the details of the business to determine whether there is even coverage under the federal law for the investigation to take place.

Can my Florida business fire an employee who complained about overtime? 

That very well may have resulted in the DOL investigation, but a Florida business should take extreme caution in disciplining any employees during a Department of Labor investigation because that too could look like retaliation. Your experienced employment attorney will be able to guide you through appropriate discipline techniques during an investigation. There may be certain times where you can discipline an employee, even during a Department of Labor investigation in Florida. But this is a risky time for a business to discipline employees and the business should be extremely cautious to discipline any employee without having explicitly discussed it with an employment attorney.

How much is a Department of Labor investigation going to cost me in Florida?

If you hire an employment attorney to protect the business during a Department of Labor investigation there will obviously be the costs involved for the legal counsel provided. Not all Department of Labor investigations are going to be exorbitant. It will usually depend on the facts of the case and how the business responds during the investigation. A budget of a few thousand dollars should be expected, just for legal fees.  Employment attorneys in Florida who are experienced in handling Department of Labor investigations may be able to work cooperatively with the Department of Labor investigators. This experience may be able to assist the business in streamlining the investigation and also avoiding unnecessary prolonging of the investigative process. In the event your Florida business made mistakes or errors it is something that an experienced employment attorney can assist with and help you correct. If you made errors, then you will usually have to pay the employees any unpaid wages. Often times you may also have to pay a penalty called liquidated damages to the employee.  Your employment lawyer can explain other possible fines and assessments. Most of the more expensive penalties happen when this is a willful violation involving many employees.  For example, if your Florida business has 75 workers that you have misclassified as independent contractors, but they really should have been classified as employees, that can be a very expensive situation to resolve. This would especially be the case if these workers claim that they worked more than 40 hours in a workweek.

 
Every DOL investigation in Florida is unique, but there are certain things that you can expect in all investigations.  Your experienced employment lawyer should be able to guide you through the process, but it is important to contact your employment lawyer as soon as possible. 

 
If you would like to contact the Law Office of David Miklas for a DOL investigation in Florida, please email us here or call us at 1-772-465-5111.