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DOL May Defer Action on FMLA Cases to Arbitration

Volume 4, Issue 5
June 9, 2005

When an employee files both a Family and Medical Leave Act ("FMLA") complaint with the Department of Labor ("DOL") and a grievance that is subject to binding arbitration, DOL can defer its processing of the complaint until the conclusion of the arbitration process. The DOL's policy reflects the "liberal federal policy favoring arbitration agreements" and the DOL's desire "to maximize the enforcement impact of [its] limited resources."

According to an August 2002 memorandum issued by the DOL Solicitor, the DOL will consider the following factors in determining whether to investigate or litigate a matter subject to an arbitration agreement: (1) whether the arbitration agreement covers the same statutory claims involved in the complaint; (2) whether the complaint involves an individual claim for relief; (3) whether the complaint calls for immediate injunctive relief; (4) whether the arbitration agreement is enforceable; (5) the cost of arbitration; (6) the extent of the arbitrator's qualifications; (7) whether the employee was afforded a "meaningful" role in selecting the arbitrator; (8) whether the employee may be represented by counsel in the arbitration; (9) the authority of the arbitrator regarding both substantive and procedural matters; and (10) the timing of arbitration.

The DOL's district offices have discretion to pursue a complaint or defer processing the complaint when the complainant has also filed a grievance subject to binding arbitration. The decision to take enforcement action or defer to the arbitration process is made on a case-by-case basis. In cases where the DOL opts to defer and the arbitration fails to adequately resolve a valid FMLA complaint, the DOL may accept the complaint for investigation at that time

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.