This is the third in a series of articles designed to explain the basics of the Fair Labor Standards Act (the “FLSA”), the rights of employees under the FLSA, and those areas which create a high risk of liability for employers, including issues of overtime pay and failure to report overtime correctly. In our first article, we provided an overview of the FLSA. In part two, we discussed certain exemptions commonly relied upon by employers to avoid the payment of overtime to their employees. In this installment, we will discuss your rights if you believe your employer improperly has failed to pay you overtime compensation.

FLSA Lawsuits

The FLSA provides you with the ability to seek the payment of unpaid overtime wages through the filing of a lawsuit. Under the FLSA, an employee who improperly has been denied the payment of overtime wages is entitled to seek:

• Unpaid minimum wages, overtime and liquidated damages;
• Monetary damages and other non-monetary relief if you are terminated or otherwise penalized by your employer for bringing such a lawsuit.

Damages

Under the FLSA, you are entitled to seek your unpaid wages, as well as the payment of liquidated damages. Liquidated damages consist of double the amount of unpaid wages an employee alleges have been withheld or denied improperly .  In most cases, an employee who has been denied the payment of overtime wages improperly will be entitled to liquidated damages. There is, however, an exemption to the payment of liquidated damages if an employer can demonstrate that it acted in “good faith” in not paying such overtime wages. That exemption is limited in most cases to those circumstances in which an employer has conducted an investigation into the application of the FLSA and in good faith determined that the payment of overtime wages was not mandated by the FLSA.  In contrast, while the FLSA generally only allows you to seek the payment of overtime wages going back two (2) years from the date you file an FLSA lawsuit, if there is a determination that your employer acted in willful disregard of the FLSA’s rules regarding the payment of wages, then you may be entitled to seek the payment of those wages and liquidated damages for a period of three (3) years.

Collective Actions

The FLSA also provides employees the ability to bring a lawsuit seeking unpaid wages as a group. That process is referred to as a collective action. Collective actions are similar to class actions and permit employees with similar job descriptions, who are denied overtime through the same compensation scheme, to bring their claims in a single lawsuit. Similar to a class action, the collective action process benefits employees who might not otherwise be able to afford to hire an attorney to represent them, and for whom, because their individual claim is not particularly large, it would be difficult to find an attorney to represent them on a contingency basis.

Conditional Certification and Notification

Through a collective action, a small group of individuals (“Plaintiffs”) file a lawsuit (most commonly in federal court) through which they seek to represent all employees who have been denied payment of wages by the same employer. Early in the collective action process, the Plaintiffs will request the Court issue a preliminary order commonly referred to as a “conditional certification” order, permitting them to notify all of the employees who could potentially be impacted by the lawsuit’s existence. Through this process other employees are provided with the opportunity to join the suit.  Prior to conditionally certifying the collective action, the Court determines whether the members of the collective are “similarly situated.” Generally, that analysis is not particularly rigorous and only requires a showing that the members of the collective performed similar job functions and were subject to the same pay scheme. Once an FLSA lawsuit is conditionally certified as a collective action, Plaintiffs notify other employees, who then have a limited period of time (generally 60-90 days) to agree to join the collective action. This is done by filing a form called a consent with the Court. By filing a consent and joining the action, an employee agrees to be bound by the outcome of the lawsuit (whether the plaintiffs win, lose, or reach a settlement). This is different, for example, from a class action where class members must “opt –out” in order to avoid being bound by the result of the case.

Statute of Limitations

Please take note that if you believe you have been denied the payment of overtime wages improperly, or have been the victim of some other improper pay scheme, regardless of whether you consent to join a collective action, file your own action, or decide to wait, the statute of limitations described above continues to run. Waiting to take action on your claim may result in barring you from taking any action at all.

If you have concerns regarding whether you have been have been properly compensated under the FLSA, please contact Robert Linkin at Duggins Wren Mann & Romero to discuss your rights. Rob is a partner with DWMR and represents Plaintiffs in FLSA matters. Rob can be reached at (512) 744-9300 or at rlinkin@dwmrlaw.com.