By Martha J. Cardi, Chief Compliance Officer, Reed Group
Effective December 13, 2010, the Department of Labor (DOL) and the ABA will assist potential plaintiffs in obtaining legal counsel and documentation for claims filed under the Family and Medical Leave Act (FMLA) and under the Fair Labor Standards Act (FLSA), which provides minimum wage and overtime rights.
Historically, the DOL receives approximately 35,000 employment-related claims annually – much more than it has the capacity to manage to conclusion. In the past, if the DOL was unable to handle the claim it simply informed employees of their right to bring a private lawsuit.
Now, pursuant to the Bridge to Justice initiative, the DOL will go further. When an employee files an FMLA or FLSA charge that the DOL does not have the capacity to prosecute, it will connect the claimant to a local ABA referral service that will provide access to private attorneys able to help the employee with his or her claim. This program may result in an upsurge of litigation claims against employers, with or without merit, as they are passed by the DOL to plaintiffs’ attorneys for representation. Employees who previously might not have pursued a claim may now have an attorney urging them to file suit.
Taking things a step further, if the DOL has commenced an investigation, it will provide to the claimant information about the DOL’s determination regarding violations at issue. According to the DOL, “This information…will be very useful for attorneys who may take the case.”
Moreover, the DOL has also developed a special process for complainants and representing attorneys to quickly obtain “certain relevant case information and documents” when available. What this relevant case information may include and whether the employer or its attorney will likewise have direct access to such information are not specified.
This initiative may have the effect of discouraging employers from being cooperative and open during the DOL’s handling of claims. Employers must now assume that any information they provide to the DOL regarding a specific individual’s FMLA claim may become available to the employee and his/her attorney.