The Department of Labor’s Wage and Hour Division (WHD) has implemented an initiative in conjunction with the ABA to refer workers whose FLSA or FMLA claims the WHD declines to pursue to private attorneys by providing a toll-free number to an ABA attorney approval service. As of December 13, when the WHD informs a complainant that it is declining to pursue his or her claims, it will also provide complainants a toll-free number to contact the ABA-Approved Referral System which will provide the complainant with a list of private attorneys in their geographic area. The referred attorneys will have experience in wage and hour and medical leave claims. The DOL-ABA initiative will also grant an authorized attorney ready access to the information obtained by the DOL in the course of its investigation.
How much information the WHD will provide to a private attorney depends on the stage at which it decides not to pursue the complaint. The WHD may refer the complainant to the ABA service at the complaint intake or complaint review stage if the worker decides not to file a complaint or indicates he or she would prefer to pursue a private right of action. Referral will also occur if the WHD determines that the complaint does not align with its priorities or that a referral would provide the “quickest access to justice.” At this stage, the worker will be sent a letter stating that WHD did not yet investigate their complaint and providing them the ABA toll-free number.
If, however, the WHD has completed an investigation when it declines to pursue the claim, it will send the complainant a letter with the WHD case number, the violations found, and the amount of wages owed. Complainants will also receive a form that will allow them or an authorized attorney to obtain quickly certain items from the investigation file.
The WHD estimates that 35,000 to 40,000 workers contact the division each year for help, including 25,000 or more workers seeking assistance with minimum wage, overtime, or family medical leave claims. The WHD declines to pursue approximately 10% of these claims, instead informing the complainant that they have a private right of action.