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What If I Cannot Afford To Sue My Employer For Overtime Violations? I Need A Lawyer!

On Behalf of | Aug 17, 2015 | Wage: Minimum Wage, Wage: Overtime |

Ohio Overtime Lawyer’s Best Reply: Who has to pay my lawyer when I sue my employer for not paying me overtime wages? How much should it cost to sue my job for wage theft? Are there any attorneys that take overtime claims on a contingency fee basis?

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As an initial note, upfront costs in employment discrimination and wage cases are never an issue for our clients because we take those cases on a contingency fee, which means you don’t pay our employment lawyers unless we recover money for you. Additionally, in overtime and minimum wage violation cases, prevailing employees can get the employer to pay the attorney’s fees.

An interesting part of the Fair Labor Standards Act (“FLSA“) states: “The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.” For our overtime law attorneys, the key language is “shall,” which means that an award is mandatory. This is different than other employment law statutes, such as Title VII of the Civil Rights Act of 1964 and

Americans with Disabilities Act (“ADA“), that give the trial court discretion as to whether it will give attorney’s fees. And, while many statutes that address fee shifting allow fees to the “prevailing party,” the FLSA gives attorney’s fees only to prevailing employees, which means that employers cannot get their attorney’s fees paid for even if they totally win. As a result, FLSA cases can carry a lot of risk and exposure for employers but not a lot of upside. (See The FLSA Can Make A Damages Mountain Out Of Molehill Lost Wages).

Given this situation, many employers often try and find ways to reduce or eliminate the risk of having to pay the employee’s legal costs.

My boss will not pay me overtime and says that it would cost me more to sue him than I would get paid even if I won my wage theft case. Are there any attorneys that take overtime claims on a contingency fee basis?

One way that employers have tried to block attorney’s fees in overtime FLSA cases is through making what is called an offer of judgment under Federal Rule of Civil Procedure 68, which provides: “At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment.” So, essentially the defendant employer can offer to admit liability. Why would an employer do this? For three reason. First, by making the offer, the defendant employer is setting the amount of what would have to be paid. Second, Rule 68 imposes a penalty on the plaintiff employees if they reject the offer of judgment by making the employee pay the employer’s costs of litigation if the jury verdict comes in less than the offer of judgment: “If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.” Now, costs do not include attorney’s fees, but they do include filing fees, deposition costs, and fees paid to experts, among other things. Third, and most relevant to today wage and hour lawyers‘ blog, is that some defense counsel for employers have argued that making an offer of judgment cuts off any award of attorney’s fees to the employee.

But, this is not wholly accurate.

In Ali v. Jerusalem Restaurant, Inc., the United States District Court for the District of Colorado address this FLSA issue. In the overtime lawsuit, the employee, Lena Derani, worked as a waitress at Jerusalem Restaurant. After switching from part-time to full time, Derani worked an average of 93 hours per week for about six months during Jerusalem Restaurant’s busy season and an average of 66 hours during the rest of the year. When the employer would not pay her for overtime, Derani got a wage theft lawyer and sued. During the litigation, the employer made an offer of judgment, but Derani rejected it. While the record does not reflect what that offer was, the court held: “the Rule 68 offer of judgment, which Plaintiffs rejected, was significantly higher than the ultimate award.” So, the employee gambled and lost; and the defendant employer was trying to use the Rule 68 offer of judgment to block attorney fees.

Although the judge rejected this argument to wholly block attorney’s fees, he did consider the rejection of the offer of judgment and lower verdict when reducing the amount of the fees:

Taking into account the arguments made by both sides, I believe a twenty-five percent reduction in attorney’s fees is reasonable. The major factor supporting a reduction is the degree of success overall, as well as in light of the rejected offer of judgment. The major factors supporting an attorney’s fee award that is significantly higher than the jury verdict are the vindication of an important legal right; the finding of willfulness; and the effect on a worker’s incentive to enforce wage laws were I to follow Defendant’s suggestion and award no fees at all.

So, at the end of the day, even when an employee rejects an offer of judgment in an overtime FLSA case and get paid less, the attorneys will get paid. Now, this may not be a comfort to the employee who is not getting paid as much as was offered (and the attorneys cannot share the attorneys’ fees with the client as a matter of law), but this is critical because it encourages lawyers to take these types of cases, even smaller wage claims, which in turn promotes the enforcement of FLSA rights.

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. 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.

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