Best Wage and Hour Attorney Answer: Can I recovery more than the amount that my boss did not pay me in overtime if I sue my employer? Can I join with other employees that were cheated out of overtime and minimum wage to sue the company that I work for? How do I sue my employer for wage theft?
Liars lie and cheaters cheat. It is what they do. And, they cannot stop doing it. Employers that lie and cheat you out of money that you are entitled to, likely have lied and cheated other employees and workers out of money. If the manager or boss got away with overtime or minimum wage violations once, he or she is likely to keep doing it over and over.
Our wage and hour attorneys have dealt regularly with these habitual wage theft employer. As our overtime law lawyers have blogged about regularly, the Fair Labor Standards Act (“FLSA“) is a federal law that requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular hourly rates for hours worked beyond 40 per week. (See Law: As A Salaried Employee, Am I Exempt From Overtime Pay?; Should Tipped Workers Be Paid Overtime? – Call The Right Attorney; Should I Be Paid Overtime Even If I’m A Manger? Lawyer Reply; Should I Be Paid Overtime Even If I’m A Manger? Lawyer Reply). Ohio also has state laws that require employers to pay overtime at time and a half regular wages to employees that work past a normal 40 hour work week, which can be found at Ohio R.C. § 4111.03.
These same laws, the FLSA and Ohio’s R.C. § 4111.03, also require employers to pay minimum wage, which our wage hours have also blogged about. (See Does My Job Need To Pay Me Minimum Wage?; Can Minors Be Paid Below Minimum Wage?; Are Outside Sales People Entitled To Minimum Wage?; and Can Seasonal Employees Be Paid Less Than Minimum Wage?). The current federal minimum wage is $7.25 per hour, but under Ohio law, the minimum wage is $8.10.
The FLSA also provides that employers who violate these wage laws are liable to the aggrieved employees for their back wages and an equal amount in liquidated damages, plus reasonable attorney’s fees and costs.
But, getting back to where we started, most employers that violate the FLSA with regard to overtime pay or minimum wages do it to more than one employee. For example, employers will often classify a group of employees as exempt my misclassifying them. For example, an employer may try to give a group of employees the title of manager, but not give them any real ability to independently hire, fire, or discipline employees. Or, a company may try to misclassify a whole group of workers as independent contractors even though, the company controls the schedule, the manner and method in which the job is done, and provides the tools. (See No Overtime For So Called “Independent Contractors”; My Job Says I’m Not An Employee, No Overtime Pay!; and Am I Entitled To Overtime If I’m A Manager In Name Only?).
Can all these wronged employees join together to fight the employer? Yep. The FLSA provides that a lawsuit may be brought by any employee for and in behalf of that employee as well as all other employees similarly situated in order to recover damages for the failure to pay overtime or the minimum wage. This type of group lawsuit is known as a “collective action,” into which similarly situated employees may “opt-in” in order to benefit from the suit’s results. In order to pursue a collective action, the representative plaintiff must file a motion with the court requesting that the case be conditionally certified as a collective action. The court then has to make sure that all the proposed employees have similar enough claims to be handled at the same time.
In Wilson v. PNK (River City), LLC, the United States District Court for the Eastern District of Missouri explained the process underlying the conditional certification process for a class of plaintiffs seeking unpaid overtime compensation from their former employer. First, the court explained that the certification process involves two steps:
At the first stage, the notice stage, the court uses a lenient standard to determine whether similarly situated persons exist, and if appropriate, the class is conditionally certified. Once the court conditionally certifies the class, potential class members are given notice and the opportunity to opt-in. The second step occurs after notice, time for opting-in, and discovery have taken place. Applying a stricter standard, the court at the second step makes a factual determination on the similarly situated question. The second inquiry is usually conducted upon a defendant’s motion for decertification.
The court emphasized that the conditional certification phase or “notice stage” requires “nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan.”
In Wilson, the court approved conditional certification, finding that the plaintiff-employees “cleared the relatively low hurdle of demonstrating that conditional certification of the collective action is appropriate.” In reaching this decision, the court reiterated that the employees were not required at this stage to present evidence that others will actually opt-in to the action.
So, can my employer stop me from bringing a collective action? If the Court grants the employee’s motion to certify a collective action for the emlpoyee’s claims as well as his/her 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; however, the United States District Court for the District of New Jersey rejected the employer’s argument and denied the employer’s motion.
Specifically, United States Federal District Court Judge Susan D. Wigenton held that there were not sufficient differences between the jobs of each of the proposed employee class members. On this point, Judge Wigenton wrote: “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.” Critically, the court recognized that there is a big difference between being the same or identical and the jobs being simply similar. To that end, Judge Wigenton held that the differences relied upon in the employer’s argument to block the formation of the class could not be viewed as “material and ‘any such differences are outweighed by the similarities between those plaintiffs.’ The shift manager’s theory was that they performed menial tasks the majority of their work time and that this amount of time undermined the premise that their ‘primary duty’ was management or supervision.”
Again, in sum, getting conditional certification for a collective action is not overly difficult. It’s a low standard for the employee to prove. Once conditional certification is granted, the employee will then have to serve notices to all prospective plaintiff-employees and give them the opportunity to “opt-in” to the lawsuit. After this lengthy process is completed, the employees can expect that the employer will file a motion to decertify the class requiring the employees to defend their position and meet a higher standard to convince the court to keep the collective action in effect because having to pay the liquidated damages and attorneys’ fees for the entire class is a very expensive proposition for the employer.
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.