Labor Department’s Wage and Hour Division to Refer Claims for Investigation to Private Attorneys

The U.S. Department of Labor’s Wage & Hour Division (WHD), the agency responsible for enforcing the Fair Labor Standards Act (FLSA), the Davis-Bacon and Related Acts (DBRA), and the Family and Medical Leave Act (FMLA), and other laws, has announced a new attorney referral initiative with the American Bar Association (ABA) through which the agency will refer cases to private attorneys instead of completing its own claims investigation. According to WHD’s website, the new referral program is intended to provide legal access to all employees who seek the WHD’s assistance.  According to the site, WHD receives more than 35,000 claims from employees each year alleging wage and hour violations, and, despite hiring 350 new investigators, it has been unable to keep up with the backlog. Under this new initiative, an employee whose claim is not pursued by WHD will receive a toll-free number to contact the ABA-Approved Attorney Referral System, which will in turn provide the employee with listings for local labor attorneys who have experience with WHD matters.  The employee may then contact the attorneys and file a private lawsuit.  If the employee elects to retain an attorney, the attorney will be given special access to WHD’s determination and relevant documents.  The site does not mention what types of documents will be made available. Given the significant potential for increased litigation as a result of the new program – perhaps including class action lawsuits – employers are well-advised to take prompt efforts, via self-audits and/or attorney audits, to ensure that their wage-and-hour policies and practices are legally compliant.  For more information and compliance tools regarding the laws enforced by WHD, visit AGC’s Labor & HR Topical Resources web page.  For help finding outside counsel to assist your company with employment matters, contact Denise Gold at (703) 837-5326 or goldd@agc.org.