For the past several years, plaintiffs attorneys have filed more wage and hour cases than any other type of employment class action. But the Department of Labor (DOL) apparently doesn’t see that as evidence that employees illegally denied overtime pay or minimum wage have adequate access to justice. According to the DOL’s Wage and Hour Division (WHD), thousands of employees are denied their right to fair pay for hours worked because the WHD lacks the resources to pursue their cases.

To remedy this perceived injustice, Vice President Joe Biden in November 2010 announced a new and unprecedented alliance between the WHD and the American Bar Association (ABA), designed to help wronged employees find legal assistance. The WHD is providing workers whose complaints it can’t handle information on their right to file a lawsuit, along with a toll-free number to connect with an ABA-approved lawyer referral program in their geographic area. The new program also will make it easier for plaintiffs attorneys working on a case to obtain information the WHD has collected. It will cover complaints under the Family and Medical Leave Act (FMLA) as well as under the Fair Labor Standards Act (FLSA).

ABA President Stephen Zack called the project “a win-win for everyone” because it enables employees with serious legal problems to readily find good representation. But many employment defense lawyers think it exemplifies a DOL that prejudges employers as exploitive and wields its power unfairly against them.

“It struck me how one-sided it is,” says John Thompson, a partner at Fisher & Phillips. “The whole focus is on ‘how can we get the employee into the hands of a capable lawyer as fast as possible and as fully armed as possible?’ I don’t see a plan for an analogous program for small employers [who face an FLSA or FMLA claim]. They feel like they are faced with a leviathan, and they don’t have the resources to fight.”

ABA Arguments

The DOL says that of the 35,000 workers who contact WHD each year, 25,000 need assistance with minimum wage, overtime or family medical leave claims. Despite adding 350 WHD investigators over the past two years, the division says it can’t handle thousands of those claims. Workers who then want to pursue a private right of action, the department contends, face “significant and difficult obstacles” finding attorneys with the subject matter expertise to assist them.

“I’m not sure that I subscribe to the rationale that there are difficult obstacles to finding a lawyer with experience and expertise,” says Al Robinson, who served as acting administrator of the WHD before joining Ogletree Deakins as a partner. Robinson points out that lawyers have many outlets for advertising today, and the Internet offers resources to those seeking attorneys in particular practice areas.

The new referral program, dubbed “Bridge to Justice,” builds on an informal practice in some WHD offices of steering employees whose cases weren’t being pursued to a local lawyer referral service.

“They wanted a more formalized mechanism to assure the attorneys to whom the individuals were being referred had experience in the FLSA and FMLA arena,” says Sheldon Warren, who chairs the ABA Standing Committee on Lawyer Referral and Information Services. Warren says DOL officials approached the standing committee about partnering with them in the referral effort. The toll-free number will operate in English and Spanish and automatically take employees to a local referral service certified as meeting ABA rules.

Warren disputes the contention that the WHD is encouraging employees to file a lawsuit by providing the toll-free number.

“I don’t view it as encouraging individuals to file lawsuits,” Warren says. “I view it as providing a mechanism by which an individual could get an evaluation of a potential claim” by a qualified attorney who will review the matter to see whether the employee has a case.

He adds that the argument that the DOL is unfairly assisting employees while ignoring the problems faced by small employers shows a misunderstanding of legal referral services, which provide the same services to small businesses as they do to individuals.

Paper Chase

More troublesome than the referral program to some in the employment defense bar is the WHD’s decision to provide plaintiffs attorneys with more information. If WHD has conducted an investigation prior to deciding not to pursue a case, the complaining employee will receive the division’s determination on violations at issue and back wages owed, information previously provided only upon request.

“This information will be given to the complainants in the same letter informing them that the Wage and Hour Division will not be pursuing further action, and will be very useful for attorneys who may take the case,” the WHD explains on its website. “The Wage and Hour Division has also developed a special process for complainants and representing attorneys to quickly obtain certain relevant case information and documents when available.”

That process includes a form allowing the worker or his attorney to request the case narrative, which the department says will be redacted to protect other complainants or witnesses and employer information covered under the Trade Secrets Act. The department is apparently removing a previous requirement that the employee or his attorney go through a Freedom of Information Act (FOIA) request process to obtain the case narrative, although it does says other information must be requested under FOIA.

Thompson says there are still unanswered questions about how much information will flow into the plaintiffs attorney’s hands.

Cautious Approach

In the meantime, defense attorneys recommend that employers take a more cautious approach to WHD requests for information and records.

James Coleman, a partner at Constangy, Brooks & Smith, warns that employers cooperating in an investigation may unwittingly turn over records that will help a plaintiffs lawyer pursue a collective action under federal law and/or a class action under state law.

“Up until now, the DOL position was that as long as the investigation was ongoing, it did not disclose anything, period, and after a file was closed, only after the plaintiff filed a FOIA request,” he says. “Now employers have to consider that DOL might be much more freely disclosing information and records. The government investigator could end up to be just the first prong of a private plaintiff lawsuit.” He points out that plaintiffs attorneys typically want to file collective actions under the FLSA, or hybrid actions under both state and federal law, which permit them to build a larger class.

Coleman says he can imagine a scenario in which a plaintiffs lawyer tells his client to take his complaint to the Labor Department so the government will do the investigative work for him. “I could see an enterprising lawyer putting that spin on it,” he says.