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Imagine you’re sitting at your desk playing Wordle — I mean working very diligently — when the receptionist barges in with a worried look. “Someone’s at the front desk demanding to look at our payroll records!”
You respond, “Didn’t you point at the ‘No Soliciting’ sign and tell them to leave?”
“That didn’t work. She said she’s from the Department of Labor, and apparently those signs have no power over them!”
In a state of panic, you quickly call your favorite employment attorney (I may know someone) and ask, “Can they just show up and demand to see our records?”
Your attorney responds, “I have some bad news…”
For many employers, this is not just some imagined scenario but is instead a dreaded reality. Both the United States Department of Labor and the New York State Department of Labor have statutory authority to investigate employers to ensure compliance with applicable employment laws and to seek damages for non-compliance.
Just like fingerprints, every investigation (sometimes referred to as an audit) is different, so how employers should react will vary based on the circumstances. In some cases, an employer will receive written notice before a visit. In others, an investigator may just show up and make immediate demands. Even in these cases, employers have some ability to request that the review be postponed to a less disruptive time, but they need to be thoughtful and diplomatic about such requests.
When the review actually begins, the...
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