Mar 14, 2011

Department of Labor Program Connects Employees to Lawyer Referral Service

A few months ago, the federal Department of Labor (DOL) began its Bridge to Justice program. This program refers certain employees who have filed complaints with the DOL to the American Bar Association's attorney referral service. These complaints involve alleged violations of the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA). 

Once an employee files a complaint, the DOL may attempt to settle the employee's claim, conduct an investigation, and even pursue litigation against the employer. However, due to limited resources, the DOL can't investigate and resolve every one of the more than 35,000 complaints it receives each year. And, the DOL has its own enforcement priorities, areas in which it is more likely to be aggressive in pursuing complaints. Right now, those priorities are heavily focused on contingent workforce issues: nontraditional work relationships, including employee leasing, use of independent contractors, and franchising, which can create confusion about the nature of the employment relationship, the identity of the employer, and what rights employees in these arrangements are owed. 

The DOL has said that it might inform an employee about the ABA referral system immediately after the employee files a complaint, if the employee indicates a desire to pursue a private cause of action against the employer. The DOL might also refer the employee at any point when the agency decides not to continue its efforts at conciliation, investigation, or litigation on the employee's behalf. Once this decision is made, the DOL will send the employee a letter with contact information for the referral system. Along with the letter, the employee will receive a form to request certain documents from the DOL's file, including documents the employee has provided, the employee's own statement to the DOL, and the DOL's calculation of back wages owed the employee, if applicable. An employee who wants other documents from the DOL's file must file a request under the Freedom of Information Act (FOIA). 

Employers will be informed if the DOL decides not to pursue an employee's claims further, but will not be specifically told that the DOL has given the employee information on the referral service. Employers are not entitled to receive the documents available to employees absent a FOIA request. 

This program is brand new, so it remains to be seen what effect it will have on FMLA and wage and hour litigation. Presumably, the DOL decides not to pursue at least some of these cases because the employee's claims are weak, which means a lawyer is likely to decline the case as well. Also, employees don't have to take their claims to the DOL in the first place. Because there's no "exhaustion" requirement under the FMLA or FLSA, employees can bypass the agency and go straight to a lawyer if they believe their rights have been violated -- and many employees with strong claims do. I'll be interested to see statistics, once they are available, on whether this program increases the number of FMLA and FLSA cases filed -- and won -- by employees who have been through the DOL process.