Article first published in The Journal Record - July 7, 2011.
The crackdown has begun, and this time they're calling in the reinforcements.
Over the last two years, the U.S. Department of Labor has added 350 new investigators to its staff. Yet despite this tremendous increase in boots on the ground, the DOL is still unable to investigate and address all the complaints filed by workers. In an unprecedented collaboration with the American Bar Association, the DOL has implemented the Bridge to Justice Program, which connects workers with private attorneys through a local referral service. While the goal of this collaboration is to help workers enforce rights under the Fair Labor Standard Act, or FLSA, and the Family and Medical Leave Act, or FMLA, and help clear the backlog of complaints, the program presents significant new hurdles and hassles for employers seeking to defend themselves.
To begin with, an employer will not receive any type of notification when a worker's claim is referred to a private attorney. However, an employer will know that such a letter has been sent if it receives a communication from the DOL that the case has been closed and remains unresolved at the time of its closure. After the private attorney referral and after an informal request by the attorney or employee, the DOL will release (on an expedited basis) any documents or information the employee provided to the agency and the DOL's computation of damages or back pay owed to the worker. Importantly, the DOL will not release this same information to the employer without a formal request. Accordingly, once the employer receives the letter from the DOL that the case was closed without resolution, the employer will need to quickly file a written Freedom of Information Act, or FOIA, request to determine whether information has been provided to an employee or her counsel and to obtain the same information the employee received without a FOIA request.
Article authored by McAfee & Taft Attorney: Kristin Simpsen.
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