Sue for Labor Law Violations

Federal and state laws require employers to follow certain rules in the treatment of their employees and managers. There are many different types of labor laws and some include wage & hour laws, workplace safety laws, employee benefit laws, union laws, family and medical leave laws, and seasonal worker laws.[1] In the case of suspected pay violations, you can contact the federal Department of Labor or an equivalent state agency. These agencies can bring a lawsuit on your behalf in court. You can also hire a lawyer to bring a private lawsuit on your behalf.

Steps

Identifying a Violation

  1. Check if you are paid the minimum wage. The federal minimum wage is currently $7.25 an hour. However, states may set a higher minimum wage.[2] You should check to make sure that your boss is paying you at least the minimum rate. If not, you could sue.[3]
  2. See if you really qualify for an exception. There are limited exceptions to the minimum wage requirement. You should also check if you really qualify for an exception or if your boss has falsely claimed an exception in order to pay you less. A description of exceptions to the federal minimum wage law is available at the Department of Labor website at http://www.dol.gov/whd/minwage/q-a.htm.
    • For example, under federal law, an employee who is paid tips must be paid at least $2.13 in direct wages. If the wage plus tips do not equal at least the federal minimum, then your boss must make up the difference.[4]
    • Minimum wage exceptions can be complicated. There are both federal exceptions and state exceptions that can apply to you. However, if you are not being paid at least the minimum, then you should contact the Department of Labor hotline at 1-866-487-9243.[5] They can listen to your situation and advise you about whether you are covered by the law.
  3. Check if you have been paid for all hours worked. Your boss must pay you for all hours that you work. You should always try to keep a copy of your timesheet and make sure that you are paid the full amount that you worked.
    • In particular, check if you are doing work “off the clock.” For example, your work schedule might be 9:00 am to 5:30 pm. However, your boss wants you to do 15 minutes of “prep work” from 8:45-9:00. You may be entitled to compensation for this work.
    • If your boss is requiring you to do work off the clock, then you should talk to a lawyer. This area of law is complicated, and an attorney can evaluate whether your “off the clock” work should be compensated.
  4. Make sure you are paid for meal breaks. You generally must be compensated for your breaks at work. However, your boss can avoid compensating you for a meal break if it is a legitimate (“bona fide”) meal break.[6]
    • Your meal break will be “bona fide” (and thus not compensated) if it is at least 30 minutes long and you are entirely relieved of your work duties.[7]
    • If your boss expects you to eat lunch at your desk and answer the phone, then you are not being given a lunch break because you are expected to work. You should be compensated for that time.
  5. Check if you were mis-classified as a white collar employee. Some employers try to classify employees in such a way that they can avoid paying overtime. The easiest way to avoid paying overtime is to claim that you are a “white collar” employee or manager. If your employer claimed you were a white collar employee, check to see if you really meet the requirements:[8]
    • You are paid a salary of at least $455 a week.
    • You perform duties appropriate to executives, administrators, or other professionals. This is a fact-specific inquiry which looks at the kind of work that you do.
      • For example, you might qualify as an exempt executive if you direct the work of two or more employees and have the power to hire or fire employees. If your boss doesn’t listen to your opinion about hiring and firing, then you may be misclassified and qualify for overtime pay.
      • You could qualify as an exempt administrator if your primary duty is office work related to general business operations and you exercise independent judgment on significant matters. If you don’t exercise independent judgment, then you could be misclassified.
  6. Calculate your overtime under federal law. Even if your employer pays you overtime, it might not be calculating your overtime pay properly. Both federal and state laws detail when you must be paid overtime. You should look through your timesheets and calculate your overtime to make sure that your boss is not cheating you.
    • Federal law requires time-and-a-half (1.5 times your regular rate of pay) for all hours worked over 40 in a workweek.[9] For example, imagine you worked 44 hours in a week. Your regular rate of pay is $10.00. You should be paid $15.00 for every hour worked over 40.
  7. Calculate your overtime under your state law. States can pass more beneficial overtime laws. If your state does, then you will calculate your overtime according to your state law.
    • For example, in California, you must be paid time-and-a-half for any hours worked over eight in a single day.[10] For example, you might work 10 hours on Monday but six hours the rest of the week. Your total workweek is 34 hours, so you don’t qualify for federal overtime. Under California law, nevertheless, you must be paid time-and-a-half for the two hours you worked on Monday.
    • Some states also require double your regular rate of pay if you work more than 12 hours in a single day.[11] For example, in California, if you work 14 hours on Monday, then you would qualify for four hours of overtime at 1.5 your regular rate of pay and two additional hours at 2.0 your regular rate of pay.
  8. Meet with a lawyer. There are many labor laws on the books, and your boss could violate them in many different ways. You should always meet with a lawyer first so that you fully understand your rights. In particular, a lawyer can help you understand your state’s laws and requirements for suing.
    • To find a labor law or employment attorney, you should contact your local or state bar association, which should run a referral program.
    • Once you have the name of a lawyer, you should call to schedule a consultation. Most lawyers provide half-hour consultations for a small fee (or even for free). At the consultation you can talk about your case.
    • Also ask the lawyer about your state’s requirements for bringing a lawsuit. In some states, such as Massachusetts, you can’t bring a lawsuit until you file a complaint with the state’s agency. However, this is not true of all states.
  9. Discuss whether to sue. During your consultation, you should talk with your lawyer about different ways to resolve your dispute. For example, you could send your employer a letter and ask that they pay you the money that you are owed. You could also try to settle the dispute outside of court.
    • Bringing a lawsuit is time-consuming. Your employer might have cheated you out of only a few hundred or thousand dollars. Although that might be a lot of money to you, you could spend several hundred dollars filing your lawsuit. Attorneys’ fees could eat up several thousand dollars as well, although you can get attorneys’ fees if you win the lawsuit.[12]
    • Accordingly, you should tell the lawyer what your budget is. The lawyer can help you think of ways to settle the dispute in a cost-effective manner.
    • For example, your lawyer might advise that you contact the Department of Labor or an equivalent state agency. These agencies can sue your employer on your behalf.[13] You don’t have to pay a fee, so this is a good cost-effective option.

Contacting the Department of Labor

  1. Contact the Department of Labor. The Department of Labor (DOL) has the power to investigate your employer’s payroll practices and to get your unpaid wages. The Department can also file a lawsuit in federal court or propose settlement.[14]
    • You can reach the DOL by calling 1-866-487-9243 or by visiting www.wagehour.dol.gov. You will then be directed to your nearest office for further help.[15]
    • If your employer violated your state’s labor laws, then you will want to contact your state agency. To find it, you can search for your state’s Department of Labor. There should be a “File a Complaint” link on the website.
  2. Gather required information. Before contacting the agency, you should gather the following information, which the agency will need to open an investigation:
    • your name and contact information (address and phone number)
    • the name of your employer
    • the location of your employer
    • the employer’s phone number
    • the name of your manager or the company’s owner
    • what type of work you did
    • how and when you were paid
    • pay stubs or personal time sheets, if available
  3. Be interviewed by the agency. The agency can interview employees as part of its investigation. An investigator might contact you for additional information. You will usually be interviewed at your job site unless you have left the job.[16]
    • Your identity will be kept confidential, and DOL does not even need to reveal to your employer whether a complaint has been made.[17]
    • Should your employer find out that you lodged a complaint, federal law also protects you from retaliation for reporting your employer. If your employer retaliates, then contact the DOL and report the retaliation. The Department can bring a retaliation lawsuit against your employer.[18]
  4. Wait for the results of the investigation. The DOL will contact your employer about the possible labor law violation. The investigator is empowered to review your employer’s payroll records.
    • The Department can sue on your behalf for your back wages, as well as additional money to be paid as a penalty (called “liquidated damages”) if your employer intentionally violated the law.[19] The penalty amount will be equal to the amount of your unpaid wages.[20]

Filing a Lawsuit

  1. Determine where to file. Lawsuits can be filed in various courts and in various jurisdictions. You will choose where to file based on the law you are suing under, where you and the defendant live or work, where the incident occurred, and how much money is at stake. In addition, if you are able to file in multiple jurisdictions, you will want to choose a forum with favorable judges, court rules, and schedules.
    • State courts have general jurisdiction, which means they can hear almost any case that is not prohibited by state law or left exclusively to the federal system. Generally, if you are suing under a particular state's law, live in that state, and had the incident occur in that state, you will be able to get jurisdiction.
    • Federal courts have limited jurisdiction and can only hear certain cases. You may go to federal court if you are suing under federal law. In addition, you may be able to go to federal court if you and the defendant are from different states and the amount you are asking for equals or exceeds $75,000.
  2. Get a form complaint. The Department of Labor might choose not to bring a lawsuit on your behalf. In that situation, you will need to think about bringing a private lawsuit against your employer. You start the lawsuit by filing a “complaint” in court. This document identifies you and the defendant. You also describe the labor law violation and state how much you are suing for.[21]
    • Your lawyer can draft a complaint and file it for you. However, if you don’t have a lawyer, then you need to go ahead and draft a complaint yourself.
    • Your court should have printed “fill in the blank” complaint forms to use. You should stop into court and ask the clerk.
  3. Complete the complaint form. You should print or type your information so that the judge can read your complaint. Each complaint form is slightly different, but they generally will ask for similar information:
    • your name and contact information (address, phone, and email)
    • your employer’s name and contact information (address, phone, and email)
    • what you want the judge to give you (how much money)
    • detailed facts about your employer’s misconduct
  4. File the complaint. You should make several copies of your completed complaint and take the copies and original to the court clerk. Ask to file.
    • You may have to pay a filing fee. If you can’t afford the fee, then ask for a fee waiver form.
    • Make sure that the clerk stamps your copies with the filing date. You will keep one copy for your records and send a copy to your employer.
  5. Send your employer notice of the lawsuit. You have to give your employer a copy of the complaint and a “summons,” which is a legal document commanding your employer to respond to the lawsuit. You can get the summons from the law clerk. Ask about acceptable methods of service.
    • Generally, you can have someone hand-deliver the notice to your employer. Typically, you can ask someone 18 or older who is not part of the lawsuit to make delivery. You can also hire a private process server, who can make delivery for a small fee.
  6. File your proof of service. Whoever makes service must fill out a “proof of service” or “affidavit of service” form. You can get this form from the court clerk.
    • If the form is returned to you, then file it with the court. Keep a copy for your records.

Preparing for Trial

  1. Look at the other party's answer. Once the employer receives notice of your complaint, they will have a limited time to respond (usually 30 days). The employer will usually file an answer with the court, which is a document that addresses your complaint. The employer will have the opportunity to deny or admit any of the allegations in your complaint, as well as make any of their own counterclaims against you.
    • If your employer makes counterclaims, you will have to file an answer to the counterclaims, which will either deny or admit the claims the employer makes.[22]
    • Be sure to read and analyze the other party's answer to determine your course of action.
  2. Conduct discovery. Once the lawsuit begins, you and the other party will enter into a period of discovery. During discovery, you will each have the ability to collect and exchange information in order to prepare for trial. You will be able to collect facts, interview witnesses, find out what the other side is going to say, and determine how strong each side's case is. When you conduct discovery, you will be able to use the following tools:[23]
    • Informal tools, which include interviewing witnesses, collecting public documents, and taking photographs.
    • Interrogatories, which are written questions to another party or witness. These questions are required to be answered under oath and they can be used in court.
    • Depositions, which are in-person interviews with a a party or witness. These interviews are conducted under oath and any answer given can be used in court.
    • Requests for documents, which allow you to ask the other side for documents that are not publicly available (e.g., emails, text messages, or internal memos).
    • Subpoenas, which are court orders requiring someone to answer questions or turn over documents.
  3. Defend against a motion for summary judgment. Following discovery, the defendant will usually file a motion for summary judgment. This motion asks the court to rule in the defendant's favor before a trial ever happens. To be successful, the defendant will have to show that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law.
    • To defend against this motion, you will have to provide affidavits and evidence that show the court there are disputed issues of fact and law. In doing so, the court will make all assumptions in your favor. If you can show this to the court, the defendant's motion will be denied and the case will move forward.[24]
  4. Take part in pre-trial hearings. Every lawsuit includes various proceedings from the time you file until trial begins. Each hearing has its own purpose and each one is important. Make sure you attend every one and be prepared to discuss the matters on the agenda. Two important types of pre-trial hearings include scheduling hearings and stipulation hearings.
    • During a scheduling hearing, both parties will meet with the judge in order to lay out a schedule for the case. This will include how long discovery will be and what the date of the trial will be.
    • During a stipulation hearing, you and the other party will sit with the judge and agree to things that are not in dispute. This hearing helps the judge understand exactly what needs to be heard at trial.
  5. Try to settle your dispute. As a last ditch effort before going to trial, sit down with your employer and try to settle your disputes. If you can do so, you will save the money and time it takes to endure a trial. Settlement discussions can be as informal as a conversation or as formal as arbitration.
    • During informal discussions, sit down with the other party and try to come up with a solution. Find common ground and work from there.
    • If informal means do not work, you might try mediation. During mediation, a neutral third-party will sit with both parties and will encourage each one to be open and honest about their case. The third-party will try to help the discussion move forward in order to come to an agreement.
    • After mediation, you might try arbitration, which involves a neutral third-party who acts as a judge. Each side will present their case to the third-party, who will look at the evidence and provide a written opinion about who has the stronger case and what a settlement might look like.

Going to Trial

  1. Attend court. Your attorney should be able to handle the lawsuit. He or she will gather evidence to present and come up with your trial strategy. You will probably have to testify on your own behalf. Your lawyer should prepare you for the testimony. To be an effective witness, remember the following:
    • Never guess. If you don’t understand a question, then ask for clarification.
    • Listen closely to the question and only answer the question asked. You shouldn’t volunteer information.
    • Speak clearly. You need to answer questions using words. Don’t gesture or mumble “uh huh.”
    • Always stay calm. You will not be an effective witness if you get rattled or angry. Take deep breaths and ask for a break if you need one.
  2. Receive a decision. After both sides have presented evidence, the judge will issue a ruling. Typically, the judge should issue the ruling immediately. However, if your case was complicated, then the judge might take the issue under consideration and issue a ruling later.
    • If the judge delays on issuing a ruling, then the court should contact you when a decision has been made, either by calling you or sending an email.
  3. Appeal, if necessary. You might want to bring an appeal if you lose. You start the appeals process by filing a Notice of Appeal with the trial court.
    • You generally do not have much time to file the Notice of Appeal. States typically give you 30 days or less, so you should ask for the form as soon as possible after receiving the verdict.[25][26]
    • Be sure to talk with an attorney about whether an appeal is in your best interest. Appeals generally take a year or longer to decide. You also will need to pay a lawyer to draft the legal brief you submit to court. If you are suing for a small amount of money, then the time and expense of an appeal might not be worth it.

References

  1. ↑ http://www.dol.gov/general/aboutdol/majorlaws
  2. ↑ http://employment.findlaw.com/wages-and-benefits/state-minimum-wage-laws.html
  3. ↑ http://www.seyfarth.com/Wage-Hour-Litigation
  4. ↑ http://www.dol.gov/whd/minwage/q-a.htm
  5. ↑ http://www.dol.gov/whd/minwage/q-a.htm
  6. ↑ http://webapps.dol.gov/elaws/whd/flsa/hoursworked/screenEE4.asp
  7. ↑ http://www.achrnews.com/articles/117625-bona-fide-meal-periods-are-your-practices-creating-overtime-liability
  8. ↑ http://labor-employment-law.lawyers.com/wage-and-hour-law/white-collar-exemptions-under-the-flsa.html
  9. ↑ http://www.dol.gov/general/topic/wages/overtimepay
  10. ↑ http://employment.findlaw.com/wages-and-benefits/state-minimum-wage-laws.html
  11. ↑ http://employment.findlaw.com/wages-and-benefits/state-minimum-wage-laws.html
  12. ↑ http://www.dol.gov/whd/regs/compliance/whdfs44.htm
  13. ↑ http://www.dol.gov/whd/regs/compliance/whdfs44.htm
  14. ↑ http://www.dol.gov/whd/regs/compliance/whdfs44.htm
  15. ↑ http://www.dol.gov/whd/flsa/WHD1498HowToFileAComplaint.pdf
  16. ↑ http://www.dol.gov/whd/regs/compliance/whdfs44.htm
  17. ↑ http://www.dol.gov/whd/regs/compliance/whdfs44.htm
  18. ↑ http://www.dol.gov/whd/regs/compliance/whdfs44.htm
  19. ↑ http://www.dol.gov/whd/regs/compliance/whdfs44.htm
  20. ↑ https://www.workplacefairness.org/complaint-pay
  21. ↑ http://nationalparalegal.edu/public_documents/courseware_asp_files/researchLitigation/PreTrialPractice/Summons.asp
  22. ↑ https://www.law.cornell.edu/wex/answer
  23. ↑ http://www.courts.ca.gov/1093.htm
  24. ↑ https://www.law.cornell.edu/wex/summary_judgment
  25. ↑ https://www.tncourts.gov/rules/rules-appellate-procedure/4
  26. ↑ https://www.courts.mo.gov/page.jsp?id=28374
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