Detest Your Boss? Call the Government

As part of the Obama administration’s “Middle Class Task Force Initiative”, the Department of Labor’s Wage and Hour Division (WHD) recently teamed up with the American Bar Association (ABA) to help plaintiffs obtain legal counsel for claims under the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).  Under this new collaboration, which the ABA described as the “first-ever federal agency, private bar collaboration,” the WHD will provide a referral to a private lawyer in situations where WHD decides not to pursue a claim. This new program will be known as the ABA-Approved Attorney Referral System.

 In a statement about the system, the WHD explained,

Although the Wage and Hour Division resolves the vast majority of complaints it receives, it does not have the capacity to pursue them all.  For example, the Wage and Hour Division received over 35,000 complaints in FY 2009 and over 40,000 complaints in FY 2010.  In each of these years, the Wage and Hour Division informed approximately 10% of complainants that it was declining to pursue or resolve their FLSA or FMLA claims and that they have a private right of action.  The ABA-Approved Attorney Referral System will now provide these workers with a reliable way to seek qualified private legal representation.

Persons who contact WHD because he/she believes they are (i) not getting paid the minimum wage, (ii) not being paid overtime, and/or (iii) being denied family medical leave), and whose cases cannot be resolved by WHD are given a toll-free number to the ABA-Approved Attorney Referral System.  A local referral service will provide the complainants with access to qualified attorneys who may be able to help resolve their FLSA or FMLA complaint. 

 According to the WHD, a complainant will be provided the toll-free number for the ABA-Approved Attorney Referral System at one of four stages:

  1.  At the complaint intake stage, if workers decide not to file a complaint or say they would prefer to pursue her private right of action
  2.  At the complaint review stage, if the reviewing manager determines, based on the Wage and Hour Division’s national and regional priorities and the office’s current resources and workload, that giving the complainant the ABA’s toll-free number provides the worker with the quickest access to justice;
  3. After an attempt at conciliation, if the employer refuses to remedy a violation but, based on the same criteria used at the complaint review stage, the manager decides that giving the complainant the ABA’s toll-free number is a better option than further investigating or litigating the complaint, or;
  4. After an investigation, if the case is not resolved through settlement, the Wage and Hour Division may decide, often in consultation with the Department’s Office of the Solicitor, to leverage the resources of the private bar by providing the complainant the ABA’s toll-free number.”

Importantly, if WHD has already conducted an investigation, the complainant will also be given information about the findings to provide to an attorney who may take the case, including (i) the violations at issue, and (ii) any back wages owed (based on WHD’s calculations).  The WHD also developed a process for complainants and representing attorneys to obtain relevant case information and documents when available.

This program serves as an example of how the Obama administration remains hostile to employers.   While no one should condone employment law violations, the enforcement assistance is clearly one-sided.  Don’t expect WHD to establish an ABA referral service for small businesses that are having challenges with miscreant employees or are being harassed by frivolous and costly lawsuits filed by trouble making workers. 

Because WHD will share information they collect, employers should monitor what is provided to the WHD when attempting to resolve a case at the administrative level.  Employers may want information provided to the WHD to be predicated on a disclaimer that the information may be confidential and protected from disclosure under the Freedom of Information Act (FOIA).

Fulcrum Inquiry performs assistance to both plaintiffs and defendants in employment litigation.  Most commonly , we (i) accumulate accounting data that identifies whether violations may have occurred, (ii) perform statistical tests that demonstrate the existence (or lack) of discrimination, (iii) perform computer forensic investigations that demonstrate employee activities, and (iv) perform damages calculations.  We also provide advice and a related online interactive calculator that may help you resolve discrimination allegations.

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