By: Walter J. Liszka, Esq.

For the first time, an unprecedented collaboration between a Federal Government Agency (Department of Labor, Wage and Hour Division) and the American Bar Association Standing Committee on Lawyer Referrals and Information Services, began on December 13, 2010. When the Wage and Hour Division of the United States Department of Labor is unable to handle a complaint or investigation raising claims under the Fair Labor Standards Act or the Family and Medical Leave Act, the involved employees will be given a toll-free number to contact the newly created American Bar Association - Approved Attorney Referral System, to procure private representation to pursue their own private litigation of their Wage and Hour Claim.

Although, over the past two years, the USDOL Wage and Hour Division has added over 300 new investigators and stepped up their enforcement efforts through targeted enforcement in various industries (Agricultural, Construction, Janitorial, Hotel/Motel Industries), the USDOL has admitted that it has been unable to help all of its complainants. The USDOL anticipates that approximately 10-15% of the individuals who complain, are unable to procure assistance from the USDOL. It is within this format initially that the new "bridge to justice" system connecting the USDOL with the new ABA Approved Attorney Referral System will come into play. Of the approximately 10-15% of the complainants who are advised that the USDOL declined to represent their interests, they will now be able to find qualified private legal representation.

The Approved Attorney Referral System will refer the complainant to a toll-free number at any one of the following four (4) stages:

1. At the complaint intake stage, if the involved complainant decides not to file a complaint, or indicates that they wish to pursue their right of private action.
2. At the complaint stage, if it is determined that, based on the Wage and Hour Division's national and regional priorities and current workload, that the complainant's "quickest access to justice" is through the private sector.
3. If conciliation fails or if an employer refuses to remedy a violation, the ABA toll-free number may be given as a better option to the complainant.
4. After the completion of an investigation, if that case is not resolved through settlement, the Wage and Hour Division may decide to "leverage the resources of the private bar" by providing the complainant the toll-free number.

While at first blush, this scenario might not seem as difficult for an employer to deal with, the Referral System will also involve the ability of the complainant, who has used the toll-free number to procure private representation, to procure the "most relevant documents" from their case file as maintained by the Department of Labor. These documents may include the complainant's own statement, the Department's own computations with regard to back wages due and owing to the complainant, and copies of documents in the investigative file. It is the position of the Wage and Hour Division that while there may be some delay in providing voluminous documents due to the fact that they must be "redacted", all documents will be provided as expeditiously as possible. This is in direct contrast to any management lawyer's experience in attempting to procure documents under the Freedom of Information Act current request procedures.

While there is no guarantee that a complainant will be able to find a private sector attorney interested in providing representation, the ABA will provide to the Wage and Hour Division aggregate information about the number of referrals that are accepted and, the outcome of those cases.

Again, as with the Wage and Hour Division's Online Calculator System to help an individual discover they have not been fairly compensated, this new "partnership" between the Wage and Hour Division and the ABA Attorney Referral System creates another interesting "opportunity" for all employers. What will ultimately arise out of the "new partnerships" of the government and the private sector is open to speculation, but it will certainly create another arena for employees to pursue alleged violations, which will certainly increase employers' costs in litigation.