US DOL and ABA Team Up under New Access to Justice Initiative

Compliance with FLSA and FMLA laws expected to catch greater scrutiny

On December 13, 2010, the U.S. DOL Wage and Hour Division (WHD) announced that it was teaming up with the American Bar Association (ABA) to provide an Attorney Referral System for workers who want to file claims for alleged violations of the Fair Labor Standards Act (FLSA) or Family and Medical Leave Act (FMLA) that the WHD does not have the capacity to pursue.

In making the announcement, the WHD observed that workers still struggle to obtain basic employment protections under the nation’s minimum wage, overtime, and family medical leave laws. Although WHD is able to help the vast majority of these workers recover denied wages or lost jobs through conciliation, settlement, or litigation, every year there are thousands of workers whose claims it cannot resolve because of limited capacity. Despite adding 350 new investigators to WHD’s workforce, with over 35,000 complaints received in 2009 and 40,000 complaints in 2010, approximately 10% of complainants are informed that the WHD is declining to pursue or resolve their FLSA or FMLA claims and that they have a private right of action.

Now, when complainants are informed that the WHD will not be pursuing further action, they will also be given a toll-free number to contact the newly created Attorney Referral System that will, in turn, put them in touch with ABA-Lawyer Referral and Information Service (LRIS) providers in their area that can help them determine whether to retain a qualified private-sector lawyer to pursue their own private litigation. In addition, when the WHD has conducted an investigation, the complainant will now be provided information about the WHD’s determination regarding violations at issue and back wages owed. The WHD has also developed a special process for complainants and representing attorneys to quickly obtain certain relevant case information and documents when available.

Given the WHD’s resources limitations, the joint venture is an opportunity for workers who may have been denied wages or lost jobs by providing them with access to attorneys who may be able to help. The program is also intended to level the playing field between law-abiding employers and those that are not. The system will be available in both English and Spanish.