Vigilant employers are taking steps to evaluate or re-assess the status of their compliance with the federal Fair Labor Standards Act and the similar laws of other jurisdictions. It is wise to do so, but management should also be careful about how and under what circumstances it goes about compiling, communicating, and documenting information relating to these matters. Increasingly, plaintiffs in wage-hour lawsuits are seeking to force employers to produce such materials in the hope of generating useful evidence.

As an illustration, in Craig v. Rite Aid Corp., Case No. 4:08-CV-2317 (M.D. Pa., December 29, 2010)(opinion below), a federal magistrate judge ruled that an employer could not withhold information of this kind from the plaintiffs under what has been called the "self-critical analysis privilege". In 2008/2009, the employer had voluntarily undertaken an internal analysis of its compliance with the FLSA and other requirements. Among other things, it had gathered information, produced written assessments, and prepared recommended changes. The project involved multiple members of the employer's human-resources, operations, and compensation departments under the direction of in-house counsel, and the information had been shared with outside counsel. The plaintiffs filed their lawsuit for unpaid wages, and they later sought documents and materials that the employer had generated as a part of its review.