Beginning December 13, 2010, the Wage and Hour Division of the Department of Labor (“DOL”) will automatically provide complainants with a referral to a private sector attorney when the DOL declines to pursue complaints filed under the Fair Labor Standards Act (FLSA) and the Family Medical Leave Act (FMLA). This new initiative, called the Attorney Referral System, is part of the DOL’s larger strategy to strengthen its enforcement and regulatory efforts. The initiative is further indication that the DOL has placed a high priority on wage and hour cases, and the initiative suggests that the number of private lawsuits will continue to rise.

WHAT IS THE ATTORNEY REFERRAL SYSTEM?

The Attorney Referral System is a product of the DOL’s collaboration with the American Bar Association’s Standing Committee on Lawyer Referral and Information Service. The referral service is aimed at assisting complainants in pursuing their claims when the DOL is unable to prosecute their claims for them. The Attorney Referral System works as follows: When a complainant is informed that the DOL cannot pursue the case, the DOL will automatically provide them with a toll-free number to call for a referral to an attorney. If a complainant elects to call the toll-free number, the complainant will be connected to an ABA Lawyer and Referral Service located in the complainant’s geographic area. Once the complainant contacts the local ABA Lawyer Referral Service, the complainant will be provided with contact information for a private-sector attorney who is experienced in handling cases similar to the complainant’s case.

In addition to the automatic referral service, the DOL will now promptly provide the complainant with portions of its investigative file, which the complainant can then give to his or her private attorney. These documents include the complainant’s statement, the DOL’s back wage computations for the complainant, and copies of any documents that the complainant may have provided to the DOL investigator assigned to the case. The DOL will provide these documents as expeditiously as possible. The complainant can also request a copy of the case narrative, which the DOL will provide after redacting certain information it views to be confidential.

THIS INITIATIVE IS PART OF A TREND TOWARD GREATER ENFORCEMENT OF WAGE AND HOUR LAWS

The Attorney Referral System is in keeping with other recent DOL actions to broaden enforcement under the FLSA. In June 2010, the DOL unveiled its “We Can Help Campaign,” a DOL website aimed at educating workers across the nation about their rights under the FLSA. The website provides employees with an overview of the law and encourages employees who believe their rights have been violated to file a complaint. Now, as a result of the Attorney Referral System, not only is filing a complaint easier, the complainant will have instant access to a private-sector attorney if the DOL decides not to pursue the claim.

Both state and federal wage and hour lawsuits have been on the rise, and the Attorney Referral System may cause an even greater increase in litigation against employers. Private lawsuits often involve, among other claims, allegations of improper classification of employees as exempt versus non-exempt, improper classification of employees as independent contractors, failure to pay overtime, failure to pay workers for off-the-clock work, improper deductions from wages, and failure to timely pay wages and accrued vacation time.

WHAT SHOULD EMPLOYERS DO NOW?

Employers should make sure they are in compliance with state and federal wage and hour laws, and should audit their payroll records and review job descriptions to ensure that there are no inadvertent mistakes.