This posting arises from comments on the “Bridge to Justice Program” by Department of Labor (DOL) Solicitor Patricia Smith, during the panel discussion “The Obama Administration’s Enforcement of the Wage and Hour Laws” at the Practicing Law Institute’s “Managing Wage & Hour Risks 2011” conference held on February 7, 2011, in New York City. David Fortney was co-chair of the conference and led the panel discussion with Ms. Smith. Leslie Stout-Tabackman was a conference speaker and led a panel discussion on wage hour compliance reviews.
The “Bridge to Justice” Program was launched by the DOL’s Wage and Hour Division on December 13, 2010 (See “DOL’s Wage and Hour Division Connects Workers to New Attorney Referral System” posted November 29, 2010; See also November 29, 2010 Entry by Robert Boonin). Under this program, the Wage and Hour Division provides attorney referral information to complainants whose Fair Labor Standards Act or Family Medical Leave Act claims the DOL declines to pursue. In addition, when the Wage and Hour Division has conducted an investigation, the complainant is provided information about the Wage and Hour Division’s determination regarding violations at issue and back wages owed. This information is 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. In announcing the program, the Wage and Hour Division stated that it had developed a “special process” for complainants and representing attorneys to quickly obtain “certain relevant case information and documents when available.” However, until just recently, the DOL had declined to provide any details as to what information it would release, the process by which the information would be released, and whether and by what means the employer would have access to information released to employees.
New information provided by Ms. Smith
Ms. Smith told the PLI conference attendees that employers will not be notified when the attorney referral letter is sent to employees, but that employers will know that such a letter has been sent if it receives a communication from the DOL that the case has been closed and remains unresolved at the time of case closure. Of course, it is unknown how many of the recipients of the letter will elect to follow up with the ABA attorney referral process and retain counsel.
Regarding the information that the DOL will provide to employees and their attorneys, Ms. Smith provided the following information:
First, in keeping with its longstanding practices, the DOL will release case information only when a case has been closed.
Second, in general, the DOL will follow the normal Freedom of Information Act (FOIA) process, which requires a written request and processing under FOIA procedures, for requests for case information. However, there are two areas of information and documents that the DOL will release to the employee and/or the employee’s attorney –BUT NOT TO THE EMPLOYER –in response to an informal request: (1) any documents or information that the claimant provided to the DOL (claimant interview, documents related to the claim) and (2) the DOL’s computations of damages/back pay deemed owed. Documents and information released to the employee or employee’s attorney based on an informal request will be provided on an expedited basis.
Third, the DOL will not provide notice to the employer of the release of information to the employee or the employee’s attorney.
Fourth, the employer will need to file a written FOIA request to determine whether information has been provided to an employee or the employee’s counsel, and to obtain the same information that was provided to the employee or employee’s counsel without a FOIA request.
Fifth, for information or documents other than the type described above, both the employee (and the employee’s counsel) and the employer will need to make a FOIA request.
We anticipate that the Bridge to Justice Program will result in more private litigation under the FLSA and FMLA. In addition, with the expedited provision of certain documents and information by the DOL to employees and their attorneys, employers should focus on taking steps to protect information provided to the DOL in an investigation and to be prepared to move quickly if they receive case closure letters for unresolved claims. Specifically:
- Employers should continue to carefully review and mark as Confidential and Proprietary Commercial Information all financial and other business proprietary information provided to the DOL in the course of an audit/investigation.
- Employers that receive a case closed letter in a complaint that has not been resolved, should consider quickly filing a FOIA request for the case file documents, including a request for any documents provided to the employee or the employee’s counsel.
- If the employee or other third party files a FOIA request for the employer’s documents or other information marked as Confidential and Proprietary Commercial Information, the DOL must provide the employer with notice and the opportunity to object to the disclosure. Employers should have a process in place for the prompt review and response to the notice by a designated employer representative.
- The DOL must notify the employer if it intends to release objected to documents and information and the date of release. Employers should have a process in place to review the notice and make a determination about filing a complaint in federal court seeking an injunction to prevent disclosure of the documents.