No employer likes it when an employee files a claim before the U.S. Department of Labor (DOL). However, such a case could feel like a walk in the park compared to litigating in federal court. This is often true because (1) employees usually file DOL claims without counsel, (2) the DOL focuses on federal laws, not state (which are often harsher for employers), and (3) because the DOL (due to heavy backlogs) looks to resolve cases as quickly as possible, often by making favorable settlement offers. Now under the DOL’s new lawyer referral program (created in conjunction with the American Bar Association (ABA)), employers are likely to face more litigation.
Beginning December 13th, when an employee files a claim alleging violations of the Fair Labor Standards Act (FLSA) or the Family Medical Leave Act (FMLA), the claim may be directed to the lawyer referral system. This will happen if the DOL is unable to process the complaint due to capacity issues. In that case, the DOL will provide the employee with a toll-free number connecting them to an ABA-approved attorney referral service through which the employee will be put in touch with an attorney in their area. The employee can then decide (with the help of a trial attorney) whether to pursue a lawsuit in federal or state court. If the DOL has conducted an investigation but decided to take no further action on the matter, they will also provide the employee with that documentation, which will further assist the employee’s attorney in deciding whether to pursue a lawsuit.
This new program comes in the wake of increased enforcement by the Federal and State Departments of Labor across the country. Employers looking to minimize the risk of litigation should have their policies and practices (particularly those dealing with wage and hour issues and FMLA) audited by competent counsel to maximize compliance.
Brody and Associates regularly advises management on complying with state and federal employment laws including wage and hour laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
