FMLA2003-1-A — Defer to arbitration agreements

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

March 5, 2003 FMLA2003-1-A

Dear Name*,

Thank you for your letter to Secretary Chao expressing your membership’s concerns regarding the
complaint intake process of the Southeast Region of the Wage and Hour Division (Division) of the U. S.
Department of Labor under the Family and Medical Leave Act of 1993 (FMLA). She asked me to respond
to your letter. The Division administers the FMLA for all private, state and local government employees,
and some federal employees, including employees of the USPS. In addition to enforcing other standards,
such as federal minimum wage, overtime, and child labor laws, the Division has processed over 25,000
FMLA complaints since the law was enacted.

Responsibility for investigations of complaints has been delegated to the various district offices of the
Division, and these offices must exercise discretion regarding the scheduling of investigations. The
number of complaints received by the Division varies by region and by district office. Each office has an
obligation during the complaint intake process to explain thoroughly the Division’s enforcement authority,
the investigative process, and available resources so that employees may make informed decisions
regarding the best avenue for pursuing their complaints. Therefore, a district office has discretion to defer
pursuing a complaint where the complainant has also filed a grievance subject to binding arbitration.

In August 2002, the Solicitor of the Department of Labor issued a memorandum outlining principles to
consider in determining whether the Department and the Division should defer to arbitration agreements.
Putting these principles into action allows us to maximize the enforcement impact of our limited resources
while recognizing what the Supreme Court has characterized as our “liberal federal policy favoring
arbitration agreements.” Some of the factors we consider in deciding whether to defer to arbitration
include: whether the arbitration agreement covers the same statutory claims; whether the complaint
involves an individual claim for relief; and, whether a complaint can be efficiently and expeditiously
arbitrated. I have attached a copy of the Solicitor’s memorandum, which is also available on the
Department’s web site at www.dol.gov/sol.

As you well know, collective bargaining agreements often offer greater benefits to employees than the
basic protections provided by labor laws, such as the FMLA. Binding arbitration featured in collective
bargaining agreements often can resolve employment problems more quickly and informally than
investigating and litigating a FMLA complaint. If arbitration fails to resolve sufficiently a valid FMLA
complaint, then the Division may accept the complaint for investigation. However, in name situation, it
appears from the information submitted to our Miami District Office that he was not protected by FMLA.

Our policy does not institute a per se rule against Department enforcement actions where an arbitral
process is available. The factors identified in the attached memorandum are to be applied on a case-by-
case basis and necessarily require the exercise of the Department’s enforcement discretion. It is
intended to expedite an employee’s access to justice without compromising their procedural protections.
Lastly, the Department and Division can act upon a FMLA complaint when the facts and equities of a
particular case demand our intervention in order to achieve the broadest possible compliance with the
law.

Should you have further questions or comments concerning enforcement strategies of the Division,
please feel free to contact me at (202) 693-0051.

Sincerely,

Tammy D. McCutchen
Administrator

Enclosure

Note: * The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. 552 (b)(7).
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