“Bridge To Justice”
Published January 2011
The term “Bridge to Justice” comes directly from the Wage and Hour Division of the DOL’s web page for the American Bar Association (ABA) – Approved Attorney Referral Program. If you have not heard of this program, you are not alone.
On November 19, 2010, a joint initiative between the Department of Labor Wage and Hour Division and the American Bar Association (ABA) to assist plaintiffs in obtaining legal counsel for claims under the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) was announced. Under the program, which the ABA described as the “first-ever federal agency, private bar collaboration,” the DOL will provide a referral to a private lawyer in situations where the DOL’s Wage and Hour Division decides not to pursue a claim. In addition, the DOL intends to inform employees about the DOL’s initial determinations regarding back wages owed. The program is part of the Obama administration’s Middle Class Task Force initiative.
Why do the Wage and Hour Division and workers need the ABA Approved Attorney Referral Program? Here is a quote from the DOL web pages:
“Although the Wage and Hour Division resolves the vast majority of complaints it receives, it does not have the capacity to pursue them all. For an example, the Wage and Hour Division received over 35,000 complaints in FY 2009 and over 40,000 complaints in FY 2010. In each of these years, the Wage and Hour Division informed approximately 10% of complainants that it was declining to pursue or resolve their FLSA or FMLA claims and that they have a private right to action. The ABA Approved Attorney Referral System will now provide these workers with a reliable way to seek qualified private legal representation.”
The DOL hired an additional 350 investigators (last year) to investigate and adjudicate the increased number of claims. The majority of the complaints filed were made by workers for alleged violations to the FLSA and FMLA.
The investigation and enforcement of these two regulations are “priorities” within the Wage and Hour Division, and it is believe that the number of FLSA & FMLA related complaints will increase beyond their capacity. For this reason, the DOL anticipates an increase in the number of referrals to the ABA – Attorney referral program.
At what point in the complaint process may the Wage and hour Division refer an employee’s claim to a private attorney?
Quoted from the DOL:
- At the complaint intake stage, if the workers decide not to file a complaint or say they would prefer to pursue his/her private right of action;
- At the complaint review stage, if the reviewing manager determines, based on the Wage and Hour Division’s national and regional priorities and the office’s current resources and workload, that giving the complainant the ABA’s toll free number provides the worker with the quickest access to justice;
- After an attempt at conciliation, if the employer refuses to remedy a violation but, based on the same criteria used at the complaint review stage, the manager decides that giving the complainant the ABA’s toll-free number is a better option that further investigating or litigating the complaint, or;
- After an investigation, if the case is not resolved through settlement, the Wage and Hour Division may decide, often in consultation with the Department’s Office of Solicitor, to leverage the resources of the private bar by providing the complainant the ABA’s toll-free number.
If the worker follows through with the referral and private legal counsel is obtained, the program provides a direct means for the provision of specific Wage and Hour records and reports to the worker and/or his/her legal counsel.
A review of the DOL web pages indicates that although not all states have a formal agreement with the ABA for this program, referral panels that distribute the referrals from the DOL to representative attorneys are present in all states.
Beyond the initial implications of enforcement of alleged claims through private plaintiff attorneys, the fact that the interpretations of, intent and application of the FMLA and FLSA will be subject to increased court rulings. The claims that are adjudicated within the civil court system alter the FMLA and will continue to shape an employer’s responsibilities for compliance to these standards. Consider the changes made to the FMLA in 2009. A majority of these changes were enacted to incorporate court rulings into the FMLA.
BASIC is monitoring the impact of this legislation and the potential that it may expand into other government enforcement divisions (i.e. Civil Rights).
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