Checklist for Department of Labor Wage and Hour Division Investigation

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This checklist contains best practices in the event of an audit by the U.S. Department of Labor’s (DOL) Wage and Hour Division. It is a suggested course of action—not a substitute for individualized legal advice. We cannot guarantee that following the steps listed below will result in the avoidance of any fines or penalties issued by the DOL.

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Preparing for an Investigation

1. To minimize exposure prior to a DOL investigation, the following steps should be taken:

The Investigation

Preliminary Matters

1. Keep in mind that the investigator may not provide advance notice of his/her visit.
2. When the investigator arrives, remain calm, let him or her in and appear welcoming. Throughout the investigation, be polite and treat the investigator respectfully.
3. Verify the investigator’s credentials.
4. Give the investigator a quiet and private room to work in that is away from any high-traffic areas. Make sure the room is free from any loose documents and that the file cabinets are locked.
5. Ensure that the investigator is accompanied throughout the fire station by the fire chief or his/her designee at all times.
6. Depending on the circumstances, you may be able to ask the investigator to return on another day to begin the investigation.

Opening Conference

1. Introduce the fire department’s audit team—that is, those individuals who are responsible for assisting the investigator during the investigation.
2. Determine the scope of the investigation, the requested records, and the anticipated duration.
3. Consider notifying outside counsel so that they may provide guidance and/or be present for the investigation.
4. Take good notes. You might need them to fight an unjust enforcement action or to contest a citation if the investigator improperly documented what occurred during the investigation.
5. Ask the investigator what prompted the audit (note, however, that the investigator may not reveal this information).
6. Find out whether the investigator intends to conduct interviews with employees and volunteers and if so, discuss parameters.
7. Ask the investigator to schedule daily status meetings with the audit team to discuss the investigator’s progress and any issues or potential violations that the investigator has discovered.

Responding to the DOL’s Request for Records

1. Ask the investigator to provide you with his/her document requests in writing.
2. In response to the document requests, do not provide more than requested. For example, do not give the investigator copies of all personnel files; rather, make copies of the specific documents requested.
3. Do not provide the investigator with original documents. Make copies for him/her, as well as a copy for yourself. Keep a record of everything produced.
4. To the extent that there is any confidential information that needs to be protected, consider whether documents need to be redacted and/or marked as confidential.
5. Do not generate any documents during an investigation. The investigator is only entitled to documents that are kept in the ordinary course of business.

Interviews with Employees and Volunteers

1. Non-Management Employees/Volunteers
2. Management Employees

Closing Conference

1. The investigator will meet with you to discuss any violations and will suggest corrective actions. If you owe back wages because of minimum wage or overtime violations, the investigator will request payment and may ask you to compute the amounts due.
2. Be sure to take detailed notes regarding the alleged violations.
3. Take immediate action to correct simple violations whenever possible.
4. Avoid making any admissions about alleged violations.
5. Determine whether you want to challenge the findings and request a hearing before the DOL.
6. If necessary, request additional time to provide supplemental information that may change the investigator’s mind on some of the alleged violations.
7. Request a copy of the final investigation report.

Final Thoughts

1. Think before you speak and answer all of the investigator’s questions honestly.
2. Consider whether to disclose any known problems to the investigator.
3. Things to Avoid: