For the past several years, plaintiffs attorneys have filed more wage and hour cases than any other type of employment class action. But the Department of Labor (DOL) apparently doesn't see that as evidence that employees illegally denied overtime pay or minimum wage have adequate access to justice. According to the DOL's Wage and Hour Division (WHD), thousands of employees are denied their right to fair pay for hours worked because the WHD lacks the resources to pursue their cases.
To remedy this perceived injustice, Vice President Joe Biden in November 2010 announced a new and unprecedented alliance between the WHD and the American Bar Association (ABA), designed to help wronged employees find legal assistance. The WHD is providing workers whose complaints it can't handle information on their right to file a lawsuit, along with a toll-free number to connect with an ABA-approved lawyer referral program in their geographic area. The new program also will make it easier for plaintiffs attorneys working on a case to obtain information the WHD has collected. It will cover complaints under the Family and Medical Leave Act (FMLA) as well as under the Fair Labor Standards Act (FLSA).
The DOL says that of the 35,000 workers who contact WHD each year, 25,000 need assistance with minimum wage, overtime or family medical leave claims. Despite adding 350 WHD investigators over the past two years, the division says it can't handle thousands of those claims. Workers who then want to pursue a private right of action, the department contends, face "significant and difficult obstacles" finding attorneys with the subject matter expertise to assist them.
More troublesome than the referral program to some in the employment defense bar is the WHD's decision to provide plaintiffs attorneys with more information. If WHD has conducted an investigation prior to deciding not to pursue a case, the complaining employee will receive the division's determination on violations at issue and back wages owed, information previously provided only upon request.
In the meantime, defense attorneys recommend that employers take a more cautious approach to WHD requests for information and records.