DOL Provides Crucial New Information on Lawyer Referral Program

by Leslie Stout-Tabackman and David Fortney, Fortney & Scott, LLC

This article arises from comments on the “Bridge to Justice” program by U.S. Department of Labor (DOL) Solicitor Patricia Smith during the panel discussion “The Obama Administration’s Enforcement of the Wage and Hour Laws” at the Practicing Law Institute’s (PLI) “Managing Wage & Hour Risks 2011” conference held on February 7, 2011, in New York City.

David Fortney, an editor of the Federal Employment Law Insider, was co-chair of the conference and led the panel discussion with Smith. Leslie Stout-Tabackman was a conference speaker and led a panel discussion on wage and hour compliance reviews.

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Background
The Bridge to Justice program was launched by the DOL’s Wage and Hour Division (WHD) on December 13, 2010. Under this program, the WHD is partnering with the American Bar Association (ABA) to provide attorney referral information to workers when the DOL declines to pursue their Fair Labor Standards Act (FLSA) or Family and Medical Leave Act (FMLA) claims. In addition, when the WHD has conducted an investigation, the employee is provided information about its determination regarding possible violations and back wages owed.

That information is given to the worker in the same letter informing him that the WHD will not be pursuing further action, and it will be very useful for an attorney who may take the case. In announcing the program, the WHD stated that it had developed a “special process” for employees and representing attorneys to quickly obtain “certain relevant case information and documents when available.” However, until just recently, the DOL had declined to provide any details about what information it would release, the process by which the information would be released, and whether and by what means employers would have access to information released to employees.

Mastering HR: FMLA

New information on attorney referral program provided by DOL
Smith told PLI conference attendees that employers will not be notified when the attorney referral letter is sent to employees, but 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. Of course, it is unknown how many of the recipients of the letter will elect to follow up with the ABA attorney referral process and retain counsel.

Regarding the information the DOL will provide to employees and their attorneys, Smith stated the following:

1. In keeping with its long-standing practices, the DOL will release case information only when a case has been closed.
2. In general, the DOL will follow the normal Freedom of Information Act (FOIA) process, which requires a written request and processing under FOIA procedures, when case information is requested. There are two types of information and documents the DOL will release to the employee and her attorney — but not to the employer — in response to an informal request: (1) any documents or information the employee provided to the agency (e.g., her interview and documents related to the claim) and (2) the DOL’s computations of damages or back pay owed. Documents and information released to the employee or her attorney based on an informal request will be provided on an expedited basis.
3. The DOL will not provide notice to the employer of the release of information to the employee or her attorney.
4. The employer will need to file a written 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 an FOIA request.
5. For information or documents other than the type described above, both the employee (and her counsel) and the employer will need to make an FOIA request.

Wage and Hour Compliance Manual

Practice points
The Bridge to Justice program almost certainly will result in more private litigation under the FLSA and FMLA. In addition, with the expedited provision of certain documents and information to employees and their attorneys, employers should focus on taking steps to protect information provided to the DOL in an investigation and be prepared to move quickly if they receive case-closure letters for unresolved claims. Specifically:

• Employers should continue to carefully review and mark as “Confidential and Proprietary Commercial Information” all financial and other proprietary business information provided to the DOL in the course of an audit or investigation.
• Employers that receive a case-closed letter for a complaint that has not been resolved should consider quickly filing an FOIA request for the case file documents, including a request for any documents provided to the employee or her counsel.
• If the employee or another third party files an FOIA request for the employer’s documents or other information marked “Confidential and Proprietary Commercial Information,” the DOL must provide the company with notice and the opportunity to object to the disclosure. Employers should have a process in place for a designated company representative to promptly review and respond to the notice.
• The DOL must notify the employer if it intends to release documents and information the company objects to and the date of release. Employers should have a process in place to review the notice and make a determination about filing a complaint in federal court seeking an injunction to prevent disclosure of the documents.