employer under wage and hour investigation

What Happens During a DOL Wage and Hour Investigation? (Step-by-Step Process)

If you’ve just been contacted by the Department of Labor’s Wage and Hour Division (WHD), the biggest question is usually:

“What happens next?”

This article walks through the investigation process step-by-step—based on how these cases actually unfold in practice.

If you are currently under investigation and need assistance navigating the process, you can contact Kalen at Labor Brain for support from a former Wage and Hour investigator.

If you haven’t already, you may want to read:
👉 [What Triggers a DOL Wage and Hour Investigation?]

Step 1: Initial Contact

Most investigations begin with a phone call or email from a Wage and Hour investigator.

In some cases, investigations are unannounced, and the investigator may simply show up at your business.

It’s also common for more than one investigator to be involved:

  • One may be in training (WHD is constantly training new investigators)
  • One may be there for language capability for employee interviews (especially in H-2A/H-2B cases)

Shortly after or during initial contact, you’ll typically receive:

  • An Initial Conference Appointment Letter with a records request

Don’t panic about the records request

These requests can look extensive—but in practice:

  • Investigators expect reasonable effort, not perfection
  • If you maintain clean and accurate time and payroll records, you are in a strong position
  • You do not have to automatically turn over everything requested

For example:

  • Tax documents
  • Contracts with clients
  • Other sensitive materials

You can often:

  • Ask for clarification
  • Provide alternatives
  • Narrow the scope

Step 2: The Initial Conference

The investigation formally begins with an initial conference between the employer and the investigator.

During this meeting:

1. Employer Questions

The investigator will ask many questions about employment practices and take notes. This meeting can take up to two hours.

The investigator may attempt to take a formal written statement.

Important:

  • You are not required to sign an interview statement
  • These statements are often summarized and can be easily misconstrued

2. Facility Walkthrough

The investigator will usually tour your operation.

Depending on your business, this may include:

  • General workplace conditions
  • Checking for required posters
  • H-2A/MSPA-specific items:
    • Vehicles
    • Housing
    • Field sanitation (OSHA-related where applicable)

3. Employee Interviews

This is a central part of the investigation.

Investigators will:

  • Select a representative sample of employees
  • Conduct interviews privately
  • Ask questions and prepare an “interview statement”
  • The statement is written in first person, but often functions as a summary
  • The employee is asked to:
    • Review it (or have it read aloud if needed)
    • Sign it

These statements are used to:

  • Corroborate employer records
  • Compare consistency across employees
  • Identify discrepancies in timekeeping or pay practices

Interviews of Supervisors or Potential “Employers”

Investigators may also interview individuals who may be considered “employers” under the FLSA based on their level of control over workers (such as those involved in hiring, supervision, or pay decisions). Unlike rank-and-file employee interviews, these individuals may have a third party present during the interview, such as an attorney or representative. This distinction is important because individuals—not just companies—can be held liable under the FLSA.

Employer best practices:

  • Do not interfere with interviews
  • Provide a private space if possible
  • Avoid creating anxiety or drawing attention
  • Do not ask for copies of interview statements
  • Do not coach employees

If investigators suspect interference, they will become skeptical of employer-provided information and will scrutinize records and statements more closely.

Step 3: Records Submission and Ongoing Investigation

You’ll typically be asked to upload records through the WHD online portal.

The investigation rarely ends after the first visit.

Expect:

  • Follow-up questions
  • Additional document requests
  • Possibly:
    • Phone interviews of employees (you usually won’t know this is occuring)
    • A second on-site visit

A practical tip on large data requests

If asked for years of payroll/time records, consider asking:

“Would you prefer a few representative pay periods to start?”

This can:

  • Reduce workload
  • Focus the investigation
  • Avoid unnecessary data transfer

Step 4: Understanding the Complaint (What You Won’t Be Told)

By the time you’re contacted, the investigator has usually already:

  • Interviewed the complainant

However:

  • The identity of the complainant is never disclosed
  • The reason for the investigation is not supposed to be disclosed

That said, if you are aware of:

  • A former employee with a dispute or grievance

It can be helpful to provide context, without being defensive. The investigator cannot confirm or deny but it’s your opportunity to provide information they may not have received from the complainant or other employees.

Step 5: Back Wage Calculations

After reviewing records and interviews, the investigator calculates back wages.

Most common violations:

  1. Overtime violations
  2. Unpaid hours worked, such as:
    • Pre- and post-shift time
    • Travel time
    • Meeting time

Common H-2A issues:

  • Improper deductions
  • Failure to reimburse inbound/outbound travel
  • Passing prohibited costs onto workers

Critical advice: Review the numbers carefully

You should never blindly accept back wage calculations.

  • These are often done in Excel spreadsheets
  • Errors are possible
  • Large amounts may be at stake

You are entitled to:

  • Review the live calculations (not a static PDF copy)
  • Ask questions
  • Request corrections

Step 6: The Final Conference

The final conference is typically conducted by:

  • Phone or video
    (even if the investigation began in person)

During this meeting:

1. Violations Are Explained

The investigator will walk through:

  • Each violation
  • The applicable law:
    • FLSA
    • MSPA
    • H-2A / H-2B

2. “Agreement to Comply”

For each violation you’ll be asked to agree to comply moving forward.

Important:

  • This is not an admission of guilt
  • It simply means you agree to follow the law as interpreted by WHD

3. WH-56 Form (Back Wages)

You will be presented with a WH-56:

  • Lists employees and amounts owed
  • Includes a payment deadline (often 14–30 days)

Before signing:

  • Verify employee names
  • Confirm amounts
  • Make sure you can meet the payment deadline

You can and should:

  • Ask for time to review (at least several days)
  • Request additional time to pay if needed

For longer extensions (90+ days), WHD may request financial documentation.

4. Civil Money Penalties (Fines)

Fines are often discussed—but not finalized—during this stage.

  • Common in H-2A and H-2B cases
  • Also possible under FLSA and MSPA

You may be told:

  • “We can’t disclose the amount”

In reality:

  • Investigators often have a general idea

It is reasonable to ask:

“How can I evaluate this resolution without understanding the potential penalty?”

Final penalties are issued later by a supervisor, but:

  • That supervisor is often open to discussion
  • Calling to discuss the assessment informally can sometimes lead to reductions

Step 7: Payment of Back Wages

Once the WH-56 is signed:

  • You are responsible for paying employees
  • You must provide proof of payment:
    • Signed receipt or
    • Cancelled check

If employees cannot be located:

  • The money still goes to the government

Back wages:

  • Are treated like normal wages
  • Require standard tax withholdings

Civil money penalties:

  • Are paid directly to the government

Important note for H-2A/H-2B employers

Historically, WHD has struggled to deliver back wages to foreign workers.

If you want your workers to actually receive payment:

  • Provide accurate contact information
  • Ask how WHD plans to distribute funds

Step 8: After the Investigation

Once the case is closed:

  • You can move forward without the investigation hanging over your day-to-day operations. Stay in compliance with identified issues and fix any undisclosed violations immediately.

Can WHD return?

  • Yes—sometimes for recidivism investigations
  • But these are relatively uncommon

If you:

  • Cooperated
  • Acted in good faith
  • Demonstrated intent to comply

Your likelihood of another investigation is generally low.

Final Thought

Most investigations are not about “gotcha” enforcement—they are about:

  • Verifying a complaint
  • Correcting violations
  • Making employees “whole”
  • Ensuring future compliance

The employers who fare best are those who:

  • Maintain clean, accurate records
  • Engage professionally
  • Take the process seriously—but not fearfully
  • Know their rights

If You’re Unsure Where You Stand

If you’re questioning whether your records or practices would hold up in an investigation, identifying issues early can make a significant difference in outcome and cost. Contact Kalen with Labor Brain to schedule a mini-audit to identify potential issues before they become part of an investigation.