Last month we reported on the Obama Administration’s new “Bridge to Justice” program, in which Department of Labor farms out wage and hour complaints to contingency-fee attorneys recommended by the American Bar Association. Vice President Biden announced the plan last November, praising the program as an inventive, inexpensive new way to sue employers.
This mawkishly named scheme has drawn little subsequent attention, even though it promotes anti-business litigation and violates the spirit of the Executive Order that bars federal agencies from hiring private attorneys on a contingency basis. This “Bridge to Justice” warrants serious scrutiny from Congress.
Committees could start by posing the questions raised in a blog post by Littller Mendelson attorney Tammy McCutchen, who served as administrator of the DOL’s Labor’s Wage and Hour Division from 2001 to 2004. From “Department of Labor to Provide Information and Documents from Wage-Hour Investigations to Employees and Plaintiffs’ Attorneys“:
- 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?
A Department of Labor website and FAQ on the “Bridge to Justice” program addresses some of these questions, but from the perspective of the employee who wants to sue the employer.
Q: How does the ABA-Approved Attorney Referral Document Request process work?
A: A complainant who has received the toll-free number to the ABA-Approved Attorney Referral System after a Wage and Hour Division investigation will also receive a form to request the most relevant documents from her case file. These documents include the complainant’s own statement, the Wage and Hour Division’s back wage computations for the complainant, and copies of any documents the complainant provided to the Wage and Hour Investigator. The Wage and Hour Division will provide these documents expeditiously. The form also allows the worker or authorized attorney representative to request the case narrative from the file; however, it explains that requesting the narrative will delay the Wage and Hour Division’s response because it must be redacted. The letter sent to the complainant with notification of the Wage and Hour Division’s decision to not pursue the case will also include information about the violations found and back wages owed to the complainant.
All other documents in the case investigation file must be requested through the Freedom of Information Act.
Q: What other types of documents are available in the case investigation file?
A: The contents of a Wage and Hour investigation file vary from case to case. Please note, however, that certain information in the file is always redacted under the Freedom of Information Act, including the names, contact information, and identifying characteristics of any other complainants or witnesses, and information about the employer protected by the Trade Secrets Act.
That’s a welcome, if minor assurance. The bigger question goes to the very essence of the program: Why is the Department of Labor priming the pump for trial lawyers? And who exactly are those lawyers, anyway?
There’s another question a Congressional committee should pose, or rather an instruction from the committee to the Department of Labor: Please submit for the record a list of all the private attorneys who are participating in this “Bridge to Justice” program.
Transparency demands it.