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DOL teams up with private lawyers to encourage FMLA, FLSA lawsuits

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in Compensation and Benefits,Employment Law,FMLA Guidelines,HR Management,Human Resources

Proclaiming “there’s a new sheriff in town,” U.S. Department of Labor (DOL) Secretary Hilda Solis last year launched a series of new enforcement efforts aimed at employers. Last month the DOL unveiled a first-of-its-kind arrangement: an attorney-referral partnership with the American Bar Association (ABA).

As of Dec. 13, employees with unresolved FMLA or Fair Labor Standards Act (FLSA) complaints with the DOL are being told of another option: a toll-free phone number that can link them to an ABA-approved lawyer in their area who could handle their lawsuit. The Wall Street Journal says the partnership essentially “helps plaintiffs' attorneys hunt for clients … let the suing commence.”

It could be a financial boon for plaintiffs’ attorneys. The big money is in FLSA cases. Employees filed more than 6,000 FLSA lawsuits last year, up from 1,500 in the early 1990s. Many employers who are sued opt to settle. With a median settlement sum of $7.4 million, according to some studies, an attorney who charges a one-third contingency fee can expect to pocket close to $2.5 million.

The referral program is designed to help aggrieved employees pursue lawsuits, even if the DOL’s Wage and Hour Division decides not to take legal action. Last year, the department processed more than 20,000 employee complaints about FLSA and FMLA issues.

A DOL statement said, “Although the Wage and Hour Division is able to help the vast majority of workers recover denied wages or lost jobs through conciliation, settlement, or, with the Solicitor of Labor, litigation, every year there are thousands of workers whose claims we cannot resolve because of limited capacity ....

"[T]he Wage and Hour Division will now connect these workers to a local referral service that will, in turn, provide the workers with access to attorneys who may be able to help. This collaboration will both provide workers a better opportunity to seek redress for FLSA and FMLA violations and help level the playing field for employers who want to do the right thing.”

That sounds ominous to employment law attorneys who represent employers. They predict more frivolous lawsuits and growing pressure for employers to settle even more lawsuits.

There are several steps you can take now to minimize your organization’s chances of being caught up in what could become a legal dragnet:

1. Review your compensation practices to make sure you’re in full compliance with the FMLA and FLSA. HR Specialist resources:

2. Audit your list of exempt and nonexempt employees. Match names against up-to-date job descriptions to make sure everyone is properly classified. Review your relationships with all independent contractors who do work for you. Are they really contractors, or are they employees? HR Specialist resources:

3. Train payroll staff and line managers on FLSA compliance issues, such as monitoring hours worked and determining when overtime must be paid. HR Specialist resources:

4. Train managers about the FMLA, so they understand their role in ensuring that your organization is in compliance. HR Specialist resources:

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