Do not pass go, do not have your claims investigated. According to the new referral system from the U.S. DOL’s Wage and Hour Division (WHD), potential plaintiffs can go directly to legal counsel. WHD, the agency responsible for enforcing the Fair Labor Standards Act (FLSA) has announced that it is undertaking a new attorney-referral initiative with the American Bar Association. In what is a jolting move to many, WHD has announced that it will begin referring certain cases to private attorneys instead of investigating those claims.
According to the WHD’s website, the new “referral” program is intended to provide legal access to all employees who seek the WHD’s assistance. WHD is inundated with claims–according to the site, WHD receives more than 35,000 contacts from employees each year alleging wage and hour violations. Despite hiring 350 new investigators, WHD is unable to pursue all of the claims filed.
Under this new initiative, an employee who claim is not pursued by WHD will be given a toll-free number to contact the ABA-Approved Attorney Referral System. The referral system will provide employees with listings for local labor attorneys who have experience with FLSA and FMLA cases. The employee may then contact the attorneys and file a private lawsuit. If the employee elects to retain an attorney, the attorney will be given special access to the WHD’s determination and relevant documents. What types of documents will be provided remains to be seen.
Employers should note that this is not a guarantee of representation. Although this referral system increases the chances that meritorious claims will be pursued, attorneys may still be relied upon to decline weak cases. The WHD’s decision to release documents prompted some attorneys to suggest that employers seek legal representation before responding to inquiries by the WHD. We would likely agree. If the Department of Labor is going to provide a toll-free number to potential plaintiffs instead of providing a fair and impartial determination of the claims, any potential benefits for employers of having a government-funded investigatory agency seems to be lost entirely.
This post was written by Lauren Moak. As with all blog posts, none of the opinions expressed herein are those of the writer’s employer, clients, or other attorneys with whom she works.