Masonry Magazine January 2011 Page. 20
LABOR REPORT
compliant. Interviews are particularly important, since they can uncover violations undiscovered in the initial conference or records review.
Employers also should know that most companies have at least one employee who wants to talk about anything and everything related to their employment, whether relevant or not. Investigators will ask pointed questions to identify other possible violations or areas of concern, because there is not fear that the employee has been coached or that the employee will report back to the employer.
The WHD will insist that most interviews be conducted privately as it tends to avoid possible intimidation by the employer. However, an employer, or its representative, is permitted to be present when the investigator is interviewing members of upper-level management, because these employees can bind the company. Wise employers will always be present or have their representatives present in these interviews.
Back wages
AFTER REVIEWING RECORDS and interviewing employees, the investigator's next step is to calculate back wages. The investigator may perform the calculations, or ask the employer to do so. Employers should always inform the investigator of any vacation time, holidays or other days employees did not work. Non-working days are not hours worked under the FLSA, and, therefore, may reduce back wage liability.
Separately, the WHD and Circuit Courts differ in their interpretation of the FLSA from time to time. While the WHD is the enforcement agency, it is restricted to enforcing the law as the courts have interpreted it. Therefore, Circuit Court rulings prevail where the national WHD enforcement policy does not comply with the Circuit Court rulings. Where Circuit Courts and the WHD differ, employers should consult with an attorney to see if back wages may be reduced because of friendlier Circuit Court Rulings.
Final conference
AT THE END of the investigation, an investigator will meet with management and explain what violations were found.
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