Vigilant employers are taking steps to evaluate or re-assess the
status of their compliance with the federal Fair Labor Standards
Act and the similar laws of other jurisdictions. It is wise to do
so, but management should also be careful about how and under what
circumstances it goes about compiling, communicating, and
documenting information relating to these matters. Increasingly,
plaintiffs in wage-hour lawsuits are seeking to force employers to
produce such materials in the hope of generating useful
evidence.
As an illustration, in Craig v. Rite Aid Corp., Case
No. 4:08-CV-2317 (M.D. Pa., December 29, 2010)(opinion below), a
federal magistrate judge ruled that an employer could not withhold
information of this kind from the plaintiffs under what has been
called the "self-critical analysis privilege". In
2008/2009, the employer had voluntarily undertaken an internal
analysis of its compliance with the FLSA and other requirements.
Among other things, it had
