It’s not often that employers get the chance to “peek behind the curtain” into the U.S. Department of Labor’s internal techniques and strategies for conducting wage and hour investigations under the Fair Labor Standards Act (FLSA). The Department usually keeps its investigation methods confidential, and takes the position that such information is protected from disclosure under the Freedom of Information Act and the investigation privilege.

Recently, employers got a rare chance to look inside the Department’s policies and procedures in an FLSA overtime case brought by the Department against the Washington State Department of Corrections (DOC). In Solis v. State of Washington, Case No. 08-5362RJB (W.D. Wash.), the Department brought suit against the DOC for failing to keep proper records and failing to pay overtime wages to 872 state corrections officers. In response to the Department’s claims, the DOC asked the Department to produce its investigation files and records. Surprisingly, as part of its response to the DOC’s discovery requests, the Department produced a copy of its internal “Introduction to Full Investigation and Litigation (FIL) Training.” The Department uses the FIL Training guide to teach wage and hour investigators how to conduct effective investigations. As explained in the guide:

Our goal is to improve our ability to complete quality, full investigations that will convince employers that they have no choice but to change their violative behavior, or failing that, to provide a winning litigation case to the SOL [Solicitor of Labor].

In addition to the FIL Training guide, the Department also produced copies of the handwritten employee interview summaries prepared by the investigator on the Department’s “Employee Personal Interview Statement” (WH-31) form. Together, these materials provide a fascinating glimpse into the Department’s internal thinking and strategies on how to conduct employee interviews during FLSA investigations. Some of the key points emphasized in the FIL Training guide include:

• The importance of including the Department’s legal counsel, the Solicitor of Labor (SOL), in the investigation process and consulting with the SOL on “the kind and amount of information needed from interviews in order to resolve the issues presented.” In other words, employers should always assume that the Department is actively consulting with its attorney and preparing for potential litigation during the course of an FLSA investigation.

• The method for determining how many employee interviews should be conducted by the investigator in order to produce a “representative sample.” As explained in the FIL Training guide, with a “small number of affected employees (10 or less), it is reasonable to interview all of them.” By contrast, the guide recommends that with a “large number of employees (100 or more), interview about 20%.”

• Specific suggestions on interview techniques and styles that Department investigators can use to put “an employee at ease” and facilitate “the free flow of pertinent information.”

• The Department’s preferences on interview locations and methods (“[p]ersonal face-to-face interviews are the best method,” while “[t]elephone interviews are acceptable” and “[m]ail interviews are the least desirable”).

• The suggested form and substance of the signed employee interview statements each investigator is required to prepare and obtain at the conclusion of employee interviews.

• The requirement that investigators “evaluate the demeanor, articulateness, self-confidence, and other appropriate characteristics of each witness,” and document that evaluation for future use by the SOL to “determine which employees will be the best witnesses” against the employer in any future litigation.

Each year the Department receives 25,000-30,000 new employee wage complaints under the FLSA. Although only about one percent of these complaints end up in court, the Department’s FIL Training guide shows that the Department conducts each investigation with the understanding that it may result in contested litigation. Given this policy, and the detailed training materials and methods used by the Department to prepare for the possibility of litigation, employers need to ensure that they devote the same time and effort to preparing their response to FLSA wage and hour investigations.

This blog entry was authored by Douglas E. Smith.