The parameters of and processes associated with the DOL/ABA Bridge to Justice initiative remain neither transparent nor open, at least where employers are concerned.  We have attempted to delve into these matters since posting our November and December comments.

On December 28, we submitted a request to the U.S. Wage and Hour Division under the federal Freedom of Information Act for "copies of all standard letters, memoranda, notices, instructions, statements, forms, summaries, descriptions, booklets, and all other documents and written materials that the U.S. Labor Department and/or any of its subordinate agencies are using or intend to use to communicate with complaining individuals and/or to attorneys representing them in connection with matters arising under or relating to the 'Bridge to Justice' initiative recently undertaken in conjunction with the American Bar Association."  We also asked for "copies of all standard letters, memoranda, notices, instructions, statements, forms, summaries, descriptions, booklets, and all other documents and written materials that the U.S. Labor Department and/or any of its subordinate agencies are using or intend to use to communicate internally about matters arising under or relating to the aforementioned 'Bridge to Justice' initiative."

The 20-business-day deadline for a response from the Division has expired.  We have received no documents, nor has our request been acknowledged.  We sent a status inquiry on February 4.

We hope that, when we finally receive responsive materials, they will shed some light upon the many still-unaddressed questions that the Initiative provokes.  Among them are these:

♦   Will the Labor Department notify employers that it has received a request to release information from an investigative file under the Initiative?  Under what circumstances and how far in advance of any release will this notification be given?  What will be the nature and substance of this notification?  Will the employer have a meaningful opportunity to oppose the release?

♦   Will the Labor Department notify an employer that it has released information relating to that employer to a complainant under the Initiative, whether or not this was done pursuant to a request?  If so, what will be the timing and nature of that notification?

♦   How will the Labor Department ensure that its investigations and other activities implicating the Initiative conform to the policies articulated in Section 51a07 of its own Field Operations Handbook (see below), including the one admonishing that "[n]o investigation shall be made of any employer solely to obtain information for use by an employee in a Sec[tion] 16(b) suit" brought under the federal Fair Labor Standards Act?

♦   What "special process", if any, does the Initiative provide for an employer to obtain information from an investigative file?

♦   Will the Labor Department make any determination as to whether matters referred under the Initiative actually involve the FLSA or any other law the Labor Department enforces?  If it will do so, how will it handle inquiries that do not implicate any such laws?

♦   Exactly what will the Labor Department be saying to people it refers to attorneys under the Initiative?

♦   Will the Labor Department's communications be different for referred matters about which it drew no conclusions, versus those as to which it concludes there is a "violation"?  Will those communications characterize a matter as a "violation" in situations in which the file contains no response from the employer?

Stay tuned for further developments.

UPDATE 02/20/11:  On February 17, 2011, we received a letter acknowledging our FOIA request.  The letter bears a handwritten date of February 10 and was postmarked on February 14.  We hope this means that we will receive responsive documents soon.

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FOH Section 51a07.pdf (15.76 kb)

The U.S. Labor Department/American Bar Association lawyer-referral program we wrote about earlier is underway.  This so-called "Bridge to Justice" is now described on the U.S. Wage and Hour Division's website.

As details continue to emerge, there is cause for heightened concern about how this will be handled.  First, it appears that the potential remains for referrals to be made under circumstances implicating neither the federal Fair Labor Standards Act nor any other law DOL enforces.

Moreover, program descriptions are replete with references to "violations", worker exploitation, "back wages owed", and so on that will serve as a predicate for referring an employee to a lawyer.  But the unfortunate fact is that, at least sometimes, initial DOL determinations of this kind are later shown to be based in whole or in part upon mistaken views of the facts, erroneous legal interpretations, or misapplication of the law to the facts.  In the past, it has usually been possible to work cooperatively with DOL to reach a proper conclusion in these situations.  However, it now seems that employers caught up in some appreciable number of these instances will instead have to devote their already-scarce resources to protracted litigation with unjustifiably emboldened employees and their lawyers.

A referred employee will also "get a form that will allow them or an authorized attorney representative to quickly obtain certain items from the investigation case file."  This is part of the "special process for complainants and representing attorneys to quickly obtain certain relevant case information and documents when available."  DOL says that whether some kinds of information will be released will depend upon the scope of disclosures permitted by the Freedom of Information Act and other provisions, but at present this is cold comfort.  It remains to be seen to what extent and in what ways the flow of information and materials to employees' lawyers will be limited.  While employers must of course abide by their legal obligations in connection with DOL investigations, the existence of this "special process" should cause management to be cautious both in deciding what documents and information will be provided to investigators and in judging how and under what circumstances these things will be disclosed.  For example, employers should be prepared to assert at the very outset the confidential nature of financial and employment-related information.

We have seen no reference to any new "special process" whereby employers can secure case information from DOL's files.

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One might think that the risk of a wage-hour lawsuit couldn't get any higher, but it will soon increase even more.  Vice President Biden and the American Bar Association recently announced that, starting December 13, the U.S. Labor Department will provide a toll-free number to connect people who have made federal Fair Labor Standards Act complaints with an ABA-approved attorney-referral service to help them find a qualified lawyer to handle their claims.  It appears that the Labor Department will do this on matters it concludes it cannot pursue given its limited resources.

In the past, DOL sometimes notified employees of their rights to sue under the FLSA when an employer refused to pay back-wages voluntarily but the government decided that the case was "not suitable for court action" by DOL.  These so-called "16(b) letters" were careful to say that DOL neither encouraged nor discouraged a lawsuit, and that whether to take action was entirely up to the individual.  It remains to be seen whether DOL's communications under this new program will be similarly restrained, but providing ready access to a lawyer might in itself be viewed as already tilting the balance in favor of suing.

Moreover, before DOL sent a "16(b) letter", it had concluded that there was an FLSA violation.  Nothing we have seen to date forecloses the possibility that the new program will include situations in which DOL has no idea whether the employee's claim is valid or even has anything to do with the FLSA's requirements.

So far as we are aware, no DOL/ABA lawyer-referral program is being adopted for employers (regardless of size) faced with allegations that they have run afoul of the FLSA.  Presumably, this is due to the DOL/ABA view that, as ABA President-elect Bill Warren puts it, "Wealthy people may already know or have a lawyer . . .."

It is more important than ever for employers to evaluate their compensation practices right now to see whether they are fully in compliance with the FLSA and with all applicable state or local laws.  Employers should regularly train and re-train payroll employees and appropriate management personnel to ensure that they know how to comply with all wage-hour requirements in the course of doing their jobs, including as to the calculation of worktime totals and the proper amounts of pay.  Furthermore, employers should conduct regular internal wage-hour compliance audits, certainly at least once a year.

This new program will likely also affect how employers go about interacting with the U.S. Wage and Hour Division in connection with investigator inquiries and compliance audits.

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