KNOCK, KNOCK: WE ARE THE GOVERNMENT AND WE ARE HERE TO HELP (ESPECIALLY IF YOU WANT TO SUE YOUR EMPLOYER)

As we have discussed in this small part of cyberspace in the past, technology has brought greater efficiencies to the workplace, but also is fraught with potential HR-related pitfalls, and the amazingly instant availability of information for disgruntled employees has dramatically increased the danger level of those pitfalls.

For example, the three-word Google search “Sue my employer” generates 1.59 million results in less than half a second.  That same search reveals catchy website addresses such as www.badbossology.com in addition to a litany of websites for firms seeking to enlist those same disgruntled employees as clients.  Now, the efforts to “help” those would-be plaintiffs who are dissatisfied with their work environment are no longer limited to the private sector.

Late last year, the United States Department of Labor (“DOL”) announced a new “partnership” with the American Bar Association.  Citing the thousands of complaints the DOL’s Wage and Hour Division regularly receives concerning violations of the Fair Labor Standards Act and the Family Medical Leave Act, the Department of Labor began “an unprecedented collaboration” with the American Bar Association’s Standing Committee on Lawyer Referral and Information Service.

With this partnership in place, disgruntled employees whose claims are not pursued by the DOL Wage and Hour Division will now be provided with a toll free number to contact the American Bar Association who then will refer callers to “approved” service providers (otherwise known as plaintiff’s lawyers) in their area to assist in pursuing a private lawsuit.  This referral service went into effect on December 13, 2010.

Likewise, where the Department of Labor has conducted an investigation, the complaining employee will be provided information about those findings including the specific violations at issue and any back wages owed to share with their individual counsel.  In fact, the Wage and Hour Division has touted this as a “special process” it has developed for complaining employees and their lawyers to secure relevant case information and documents when available.  In short, a disgruntled employee and his or her lawyer can now rely on the DOL to conduct the initial investigation and then “expeditiously” secure a copy of this free discovery to use in a private lawsuit against the employer.

Of course, employers in West Virginia have been confronted with this issue for some time as the West Virginia Division of Labor has long provided a list of lawyers who have expressed a willingness to assist employees pursuing wage and hour and other complaints against their employers.  Now, employers everywhere are facing a potential onslaught of legal action thanks to this “unprecedented collaboration.”  This partnership comes as class action wage and hour litigation continues to be among the fastest growing areas of new claims filed on an annual basis.

So what can employers do to fend off this onslaught?  While removing the telephones and internet access from the workplace might sound enticing, it is a practical impossibility.  Hopefully, being aware of this new, broad referral network prompts a Human Resources Department to be more vigilant on the FLSA and FMLA fronts.  The tried-and-true proactive steps of reviewing your policies and practices and keeping up with your documentation are the best defenses.  Periodic but regular reviews of employee classifications and other payroll practices are always advisable, as well.  The same applies to a check of your record retention policies and practices.

Employers can do precious little to prevent complaints or lawsuits from being filed in the first instance, but can always be prepared to defend against allegations of unlawful wage and hour practices or missed steps under the FMLA with appropriate documentation when such suits are filed.  That, and don’t answer the knock at the door.

Tom Kleeh concentrates his practice in labor and employment law. Mr. Kleeh has experience defending employers in protected class litigation and claims in discrimination claims against employers based upon age, race, sex, disability, religion and national origin as well as claims of sexual and other forms of unlawful harassment. He has defended claims for breach of contract, retaliatory discharge, defamation, invasion of privacy, and other employment-related torts.
 
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