Beginning on December 13, 2010, the U.S. Department of Labor’s Wage and Hour Division will begin assisting employees to find attorneys, and providing employees and their attorneys with information and documents gathered during investigations.

In the past, the Department of Labor (DOL) has fought tenaciously to limit the information and documents it was required to disclose to the public – often through Freedom of Information Act (FOIA) litigation. The DOL often refused requests by employers for information and documents in investigation files. The DOL’s policy was to refuse disclosure of any information or documents until an investigation was closed. Even after an investigation was closed, the DOL would release investigation files only in response to a FOIA request and only as required by the FOIA. The DOL would withhold and refuse to release, for example, any information or documents that could reveal the identity of the complaining employee or any employee providing a witness statement. The DOL would also protect company confidential and proprietary information from disclosure.

These long-standing policies appear to be changing.

On November 23, 2010, the following announcement was posted on the Wage and Hour Division’s website:

The Wage and Hour Division (WHD) and the American Bar Association have announced an unprecedented collaboration providing for an Attorney Referral System. Beginning on December 13, 2010, when FLSA or FMLA complainants are informed that the Wage and Hour Division is declining to pursue their complaints, they may also be given a toll-free number to contact the newly created ABA-Approved Attorney Referral System. In addition, WHD will also provide prompt relevant information and documents on the case to complainants and representing attorneys. Please visit the Attorney Referral System Webpage for more information on this collaboration.

This new program, which the DOL calls the “Bridge to Justice,” raises significant issues for the regulated community regarding information and documents that employers provide to the DOL during wage-hour investigations. Questions that arise include:

• Will the DOL require employees and their attorneys to file Freedom of Information Act requests before releasing information and documents from its investigation files?
• What type of documents and information will the DOL be turning over to employees and their attorneys?
• Will the employees’ attorneys be given the time records and payroll data that employers provided to the DOL during investigations (and which often include employee names, addresses, and Social Security numbers)?
• Will the DOL provide employers with notice that it is turning over company information or documents?
• Will employers be provided with the opportunity to object to release of confidential and proprietary company information?

The DOL’s new Attorney Referral System website states only: “The Wage and Hour Division has also developed a special process for complainants and representing attorneys to quickly obtain certain relevant case information and documents when available.”

The website contains no information regarding what this “special,” quick process will be. The DOL has provided no information regarding how it will protect the privacy of employees who may not want information regarding their pay disclosed to coworkers. Nor has the DOL stated whether employers will be given any notice or have an opportunity to object to release of company information and documents to employees or their attorneys. The DOL has not indicated whether it will provide employers with the same information and documents that it provides to employees and their attorneys.

Until the DOL provides the public with answers to some of these questions, employers should carefully consider the types of information and documents provided to the DOL’s Wage and Hour Division during an investigation. At this point, employers have no choice but to assume that any information or document provided to the DOL during an investigation may end up in the hands of plaintiffs’ attorneys.

This entry was written by Tammy McCutchen.*

*Tammy McCutchen is a Shareholder in Littler Mendelson's Washington, D.C. office. Ms. McCutchen served as the Administrator of the U.S. Department of Labor’s Wage and Hour Division from 2001 to 2004.