Late last year, the American Bar Association announced a “first of its kind partnership between a federal agency . . . and the private bar.”
The federal agency — the Department of Labor — and the ABA have teamed in a bold initiative to pair potential plaintiffs with private sector plaintiffs’ attorneys to bring lawsuits against employers under the Fair Labor Standards Act and Family Medical Leave Act.
Now, employees who bring an labor standards or family leave complaint that is not resolved by the Labor Dept.’s Wage and Hour Division are referred to a toll-free telephone number that connects them with the bar association’s attorney referral system. The Department of Labor will also share relevant documents from an employee’s case file with the private attorney to assist in any private lawsuit.
We expect this initiative to result in an increase in wage and hour litigation over labor standards and family leave violations, including costly collective and class-action cases. These cases are particularly attractive for plaintiffs’ attorneys, since attorneys fees are available if the verdict is in favor of the employee.
In addition, since the Department of Labor will share much of the employee’s case file, plaintiff’s attorneys may be more likely to believe a case is strong, or may see more upside in taking cases where the federal agency has already completed much of the investigatory heavy lifting.
This DOL-ABA Referral Initiative is in line with a more aggressive Department of Labor stance under the Obama administration. Last year, Labor launched a “We Can Help” initiative aimed at encouraging underpaid or misclassified workers to file complaints against their employers. The website for the “We Can Help” program includes a large banner which reads “How To File A Complaint.” Employees who follow that link are walked through the process of getting a complaint against their employer rolling.
That’s not it. Last December, the agency’s Office of the Solicitor of Labor developed an aggressive operating plan for 2011 and the future under which the solicitor will be taking a more active role in the administrative and pre-litigation phases of Department of Labor investigations. The Solicitor is also undertaking a “liquidated damages pilot project” to assist the agency in seeking double damages. The Solicitor even plans to identify egregious cases for criminal prosecution.
Wage and hour issues can be tricky and legal determinations are not always intuitive. Many well-meaning employers mistakenly classify non-exempt workers as exempt, or mistakenly treat workers as independent contractors instead of employees.
Family Medical Leave Act determinations can also be confusing. In light of the Department of Labor’s unusually aggressive posture, we recommend that all employers play it safe and call your labor and employment counsel to review your wage and hour policies. A thorough employment practice audit now can save your company headaches and money down the road. Given the Department of Labor’s stance here, it’s not worth taking a chance.
Michael B. Leahy is an associate with the law firm of Skoler, Abbott & Presser P.C.. The firm –which has offices in Meriden, Springfield and Worcester — represents management interests in labor and employment issues. His practice is in employment counseling and litigation. Reach him at 413-737-4753 or mleahy@skoler-abbott.com.
