Tuesday, December 14, 2010

Do you know? ABA/DOL’s Bridge to Justice (or, Bridge Over Troubled Referrals)

A couple of weeks ago, the American Bar Association and the Department of Labor’s Wage and Hour Division announced an unprecedented collaboration called “Bridge to Justice.” It is an ABA-approved attorney referral system to connect those who file wage and hour complaints with the DOL to attorneys who will handle cases the DOL is not interested in pursuing. Here’s the quick and dirty, courtesy of the DOL’s website:

Beginning on December 13, 2010, when FLSA or FMLA complainants are informed that the Wage and Hour Division is declining to pursue their complaints, they will also be given a toll-free number to contact the newly created ABA-Approved Attorney Referral System….

In addition, when the Wage and Hour Division has conducted an investigation, the complainant will now be provided information about the Wage and Hour Division’s determination regarding violations at issue and back wages owed. This information will be given to the complainants in the same letter informing them that the Wage and Hour Division will not be pursuing further action, and will be very useful for attorneys who may take the case. The Wage and Hour Division has also developed a special process for complainants and representing attorneys to quickly obtain certain relevant case information and documents when available.

Did I read that right? Will the DOL be providing the complaining party and the referred attorney “relevant case information and documents?” The DOL explains, in a short FAQ about its new attorney referral system:

Q: How does the ABA-Approved Attorney Referral Document Request process work?

A: A complainant who has received the toll-free number to the ABA-Approved Attorney Referral System after a Wage and Hour Division investigation will also receive a form to request the most relevant documents from her case file. These documents include the complainant’s own statement, the Wage and Hour Division’s back wage computations for the complainant, and copies of any documents the complainant provided to the Wage and Hour Investigator. The Wage and Hour Division will provide these documents expeditiously. The form also allows the worker or authorized attorney representative to request the case narrative from the file; however, it explains that requesting the narrative will delay the Wage and Hour Division’s response because it must be redacted. The letter sent to the complainant with notification of the Wage and Hour Division’s decision to not pursue the case will also include information about the violations found and back wages owed to the complainant.

In other words, the DOL will provide employees and the referred attorneys a roadmap to filing a lawsuit: the complainant’s statement, the nature of any violations found to have occurred, back wage computations, and the DOL’s own internal narrative.

It used to be that if the DOL declined to pursue a charge, there existed a better than average chance the claim would die. Now, lawyers will be lining up to receive a referral, along with a connect-the-dots claim. If this referral program doesn’t scare employers into conducting a proactive and comprehensive wage and hour audit to prevent these referral from taking place, nothing will.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.