Best Overtime Lawyer Answer: What can I do if my employer fails to pay me and my coworkers overtime compensation? What is the difference between a class action and an overtime collective action? What should I do if my boss will not pay me overtime? How do I find a wage and hour attorney?
Sometimes an employer not only fails to correctly pay one of its employees, but instead, incorrectly pays a large number of employees who all sharing the same job title or duties. In such a case, the Fair Labor Standards Act (“FLSA”) allows for these employees to band together and bring a single lawsuit against their employer for any shared wage and hour violations.
Is an overtime collective action the same thing as a class action lawsuit? Under the FLSA, a lawsuit where several employees attempt to assert their wage and hour rights against a common employer is known as a collective action. This is similar to a “class action” with some differences, mainly regarding how the lawsuit is initiated and how employees join the lawsuit. A notable difference between a collective action and a class action is that in the wage and hour collective actions, employees have to “opt-in” to join the lawsuit rather than “opt-out” like most class action lawsuits. Usually, a collective action under the FLSA will begin with a single employee who brings a complaint against the employer. If there is evidence that this employee’s allegations apply to other employees at that same employer, the attorney may file a motion to have the Court certify the lawsuit as a collective action. At that point, the original employee-plaintiff would act as a representative plaintiff for the other employees who choose to opt into the lawsuit.
First, it raises the stakes for the employer. It is one thing if the employer has to pay one employee, but another if it is looking at possible liability for numerous employees. An employer may be able to gamble and avoid settlement with a single employee because a jury verdict may not hurt the employer financially. This may not be true if the employer gambles and loses in a collective action, which could result in a verdict in the millions of dollars if enough employees are involved in the suit. Thus, a collective action may result in the employer being willing to give up a bit more in order to avoid trial, especially if the employees’ claims have merit.
Second, having multiple employees in the suit may make the case easier to prove. More plaintiffs usually means more available records, more corroborating testimony, and puts more pressure on the employer to come up with a better defense. These are just a few of the possible advantages.
Can my employer stop me from bring a collective action? If the Court grants your attorney’s motion to certify a collective action for your claims as well as your coworkers, at that point, the employer is left with the challenge of trying to decertify the collective action through its own motion. One way to challenge the class of employees who make up the collective action is to argue that the employees’ job duties are too dissimilar to the point where a common pattern or violation of the FLSA cannot be proven.
This argument was made by the employer in Ruffin Jr. v. Avis Budget Car Rental LLC. This case dealt with Avis’ policy of not paying shift managers overtime. The wage and hour complaint asserted that Avis misclassified the shift manager employees as exempt from the FLSA and as a result “failed to pay them for all hours worked as well as overtime compensation” even though they performed non-exempt duties, including cleaning and moving cars around lot, checking inventory, renting cars, installing child car seats, and other non-managerial duties.
In ruling on Avis’ motion to decertify the collective action, the trial court first set forth the standard:
Under the FLSA, an employee may pursue a civil action to recover unpaid overtime on his own behalf as well as on behalf of other employees who are “similarly situated.” 29 U.S.C. § 216(b). A FLSA collective action allows individuals who are similarly situated to the named plaintiff to opt in to the action by filing a written consent with the Court. … To determine at this stage whether the plaintiffs have met their burden of showing that they are similarly situated, the court examines various factors, including (1) the disparate factual and employment settings of the individual plaintiffs, (2) the various defenses available to defendants, and (3) fairness and procedural considerations.
Then the trial court held that the plaintiff employees satisfied the burden in this case:
With respect to the first factor—factual and employment settings—this Court finds that the evidence reflects that Plaintiffs performed similar day-to-day functions. As courts have routinely held, Plaintiffs do not need to be identical to be similarly situated for purposes of an FLSA collective action. … Here, deposition testimony of Plaintiffs and Defendants’ witnesses demonstrates that Plaintiffs performed primarily the same duties, were nearly all given the job title and job description of Shift Manager, underwent the same training program, and were subject to the same policies—including not being paid overtime wages. … While there are disparities in the deposition testimony about job duties, they are not material and “any such differences are outweighed by the similarities between those Plaintiffs.” Garcia v. Freedom Mortgage Corp., 790 F. Supp. 2d 283, 287 (D.N.J. 2011).
If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. Or, maybe you are being misclassified as an independent contractor. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.
The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.