Section 1
If your job has been misclassified or your employer has denied overtime and you’re thinking about filing a Fair Labor Standards Act (FLSA) lawsuit, it’s important to understand how FLSA lawsuits are filed and what information your wage and hour lawyer needs to investigate your FLSA claim or FLSA lawsuit. Our wage and hour lawyers can tell you what you need to know.
FLSA Lawsuits: How Are They Filed?
FLSA lawsuits are filed as a “collective action,” which is similar to a class action, but only includes those employees who specifically express their desire to be part of the litigation. Class action suits, on the other hand, include all possibly affected persons unless they specifically express their desire not to be part of the litigation. Similar to a class action though, these FLSA collective claims allow many employees to come together in one lawsuit and enable a large group of employees who are injured by the same illegal conduct to have all their claims joined together.
That’s important in situations which involve hundreds, or potentially thousands, of class members or employees because if each person brought only their own lost wages individually, it would probably be too small to bring to suit. However, when you combine everyone’s individual claim in a collective action, individual employees themselves can be more successful in receiving compensation caused by the employer’s illegal conduct.
What Information Is Needed To File An FLSA Lawsuit?
In order to begin the evaluation of a potential case, we would need information and possibly documentation regarding the name, location and size of your employer, your job title, description and duties, your hourly wage or salary and the number of hours worked weekly, the amount of lost wages, the number of similar employees – those employees with similar duties – and a description of the employer’s practice as it pertains to the unpaid wages or unpaid overtime.
If we determine that there is a potential claim, then we will collect more detailed information and documentation such as copies of paychecks, time sheets, employer policies/manuals and things of that nature.
Section 2
What are an employee’s wage and hour rights under the Fair Labor Standards Act (FLSA) when their job has been misclassified? That’s a question for which many employers and employees alike continue to struggle. Here’s some clarification:
Employee Wage & Hour Rights: FLSA & Unpaid Overtime
Employers are required to pay overtime wages to all non-exempt employees under the FLSA. If an employee’s job title is misclassified and he or she is actually non-exempt under the FLSA (regardless of whether the misclassified employee is paid hourly or on a salary basis) the employee is entitled to overtime compensation at a rate of 1.5 times his or her regular hourly rate of pay for each hour worked.
Employees who are successful in bringing these claims against their employers are also entitled to liquidated damages in an amount two times the amount of unpaid wages if the employer’s conduct was intentional. Unpaid wages may include time spent working before and after an employee’s actual scheduled shift, doing paperwork or other necessary activities and other times when it may have been necessary for the employee to perform off the clock work.
Wage & Hour Lawsuits: FLSA Prohibits Employer Retaliation
It is against the law for your employer to fire you or retaliate against you in any way as a result of filing an FLSA lawsuit or being part of an a collective FLSA action as the FLSA statute specifically prohibits such conduct. In fact, any adverse employment action as a result of a complaint or even a written communication complaining about unpaid overtime wages is prohibited by law, even if the lawsuit is ultimately unsuccessful.
Wage & Hour Lawsuits: Why You Should Hire An FLSA Attorney
While employers frequently misclassify employees as exempt, they sometimes misclassify workers as independent contractors instead of employees or force or allow employees to work without being paid for that time. The FLSA is a very complicated and misunderstood law. Therefore, it is always best to have your specific situation evaluated by an attorney.
Section 3
Who enforces the law?
The FLSA is enforced by the wage and hour division of the US Department of Labor and also by the Kentucky Labor Department for state claims (which may have different requirements than federal claims). Investigators stationed across the U.S. conduct investigations and gather data on wages, hours, and other employment conditions or practices, in order to determine whether an employer has complied with the law. Where violations are found, they also may recommend changes in employment practices to bring an employer into compliance. It is a violation to fire or in any other manner discriminate against an employee for filing a complaint or for participating in a legal proceeding under FLSA.
Willful violations may be prosecuted criminally and the violator fined up to $10,000. A second conviction may result in imprisonment. Employers who willfully or repeatedly violate the minimum wage requirements are subject to a civil money penalty of up to $1,000 for each such violation.
The FLSA makes it illegal to ship goods in interstate commerce which were produced in violation of the minimum wage, overtime pay, child labor, or special minimum wage provisions.
What are the remedies available to me?
There are several different methods under the FLSA for an employee to recover unpaid minimum and/or overtime wages; each method has different remedies
- Wage-Hour may supervise payment of back wages.
- The Secretary of Labor may bring suit for back wages and an additional penalty, called “liquidated damages,” which can be equal to the back pay award (essentially doubling the damages) if an employer willfully violated the statute.
- An employee may file a private lawsuit for back pay and an equal amount as liquidated damages, plus attorney’s fees and court costs. An employee may not bring a lawsuit if he or she has been paid back wages under the supervision of Wage-Hour or if the Secretary of Lab or has already filed suit to recover the wages.
- .The Secretary of Labor may obtain an injunction to restrain any person from violating FLSA, including the unlawful withholding of proper minimum wage and overtime pay.
- State law may provide different methods for recovery of unpaid wages, and different remedies to be awarded to those who succeed in proving a violation.
If you have a FLSA or Kentucky wage and hour violation, please contact Brook or Brian at Brooking and Halloran at 859-292-1183 (Direct to Brian). We can advise you on the best course of action and help remedy your wage and hour matter via the appropriate channel.