Lessons from Recent Overtime Cases
Time is your most valuable commodity.
Whether on the clock, salaried, or self-directed (self-employed, contractors, etc.), most people trade time for money. Maybe your employer has traded back some of your time to you as paid vacation or holidays and maybe you are able to reserve some of your own time at the last minute in the form of sick leave, but for the most part, our economy is rooted in that trade.
Throughout history, as ‘time for money’ became the main way people supported themselves, it became common for those paying the money to take advantage of the leverage created when people needed to work. As a feudal society transitioned to an industrialized one, options became increasingly scarce and those typically on the bottom rungs of the societal ladder were stuck doing what those on higher rungs told them and when. Pick your bottom rung group – women, ethnic minorities, children – all faced exploitation in the time for money trade. Long hours, low pay, and dangerous and/or hostile conditions were fixtures until government action changed the dynamic by imposing regulations on the length of workdays, the safety of work, required pay, and workplace protections against harassment and discrimination, etc.
Now, some question the value and place of regulation in modern society; however, it seems most can agree that regulation in the past – from the end of child labor to mine safety – improved the lives of the working class.
In the United States, several laws provide a web of employee protection. Some laws deal with workplace discrimination and accommodation (Title 7 and the Americans With Disabilities Act for example), and others deal with the amount of time employees spend at work and their pay for those hours (the Fair Labor Standards Act and state employment acts). Those latter acts mandate minimum wages, establish overtime requirements, and provide consequences for businesses that do not comply with wage and hour laws.
According to social media and headlines, the world has gone litigation crazy. Politicians rail about frivolous lawsuits and tort reform and many get the impression that the most pressing issue is stopping people from using the legal system when they have no real claim. Defense attorneys often paint a picture of plaintiffs trying to get rich quick – using the system we all pay for to line their pockets. If the ‘get rich quick plaintiff’ picture doesn’t do the job, the picture of the greedy plaintiff’s attorney pushing a case forward and taking a lion’s share of any recovery is also effective.
In my experience, that is usually not the case when it comes to employment disputes. Many labor-related disputes never see the light of day – let alone the light of a courtroom. Those most apt to be taken advantage of in the ‘time for money’ trade tend to be in especially precarious positions. Those employees usually do not have the resources to hire an attorney and don’t have the luxury of ‘Plan B’s’ for work. Even with the best case, justice (and a settlement) is always delayed. For those who have no way to pay for groceries in the meantime, that means that justice, practically speaking, is denied. Outside of financial pressures, many workers face other obstacles to raising objections to employer practices.
In the DC metro region, for example, it is common to have businesses almost entirely made up of members of a single ethnic community. In those situations, a lack of understanding of rights and obligations can run headlong into a fear of being ostracized from the community if you complain. That real-world concern can allow some employers’ practices to go unchecked.
What should you do if you suspect that your employer is taking advantage of you – either intentionally or through mismanagement? Recently, I represented a plaintiff in an employment dispute and there were a few ‘takeaways’ that I wished other workers understood:
1.) If you are concerned about a practice at your place of work – whether you feel you are being singled out and treated differently than other employees or whether you believe your employer is not paying you fairly for the hours you work, find an attorney you can trust. You might learn that the employer’s practices violate the law – or you might learn that you just have a crummy job and a terrible boss. Either way, objective advice from someone used to dealing with employment disputes is a must. There are plenty of great attorneys who represent only workers or employers, but in my experience, it is an advantage to find an attorney who represents both workers and employers and understands the issues facing each.
2.) Understand that the law offers protections to those who bring complaints. Often, an enormous obstacle for those with workplace claims is the fear that they will be fired or treated harshly if they raise their voices about an employer’s practices. When an employer acts against you (firing you, reducing your hours, making your schedule more difficult, etc.) because you have complained about their practices, that is known as retaliation. Retaliation is against the law.
3.) Ask direct questions to your attorney about financial risks – does the attorney handle matters on a contingency basis (the attorney’s fee is taken out of any judgment you receive – so if you don’t win, there is no fee), charge by the hour, or handle some cases on a hybrid contingency basis (the attorney might charge a reduced hourly fee and then take a reduced percentage of a judgment). In all of the questions about legal fees, there are considerations to make. Many employment laws provide that you can recover your attorney’s fees if your claim is successful – so paying hourly if you are able on a strong claim might mean that you keep a larger amount of an eventual judgment and can ask the court to award you what you have paid in fees as well. If you do not have the resources to pay legal fees, remember that a judgment reduced by a contingency fee is exponentially more than no judgment at all.
4.) Ask questions. In our latest case, an individual worked as a truck driver for an employer based in Virginia. The truck route they drove, however, was primarily out-of-state. Our client did not understand (because the employer did not post any required information) that they were technically considered employees of the other state since they worked over 50% of their time in there. That meant that they had protections from both employment laws in Virginia and employment laws in the other state. Since protections for employees under state laws can differ, it was important for the employee to understand their rights in both jurisdictions (in this specific case they were not entitled to overtime pay for their job under federal or Virginia law, but they were owed overtime under the other state’s laws). Often we take for granted that employers will both understand the law and inform workers about their protections – that is not always the case.
5.) Keep documents. Make sure you have copies of important employment documents. Timecards, employment agreements, and emails/text messages from bosses are all important pieces of information should a problem arise at work. Accessing documents from payroll systems can be frustrating, and employees sometimes assume that emails and communications will be in ‘the system’ if they ever need to find one. Invariably, if you need an email, etc., as evidence of a problem in the workplace, that will usually be the document you cannot find. Be your own best advocate and keep everything you might need.
Your time is the most valuable commodity you have – make sure that trades of it are fair and follow the law. Don’t wait to seek advice if you feel an employer is not complying with the law – even if all you have is a feeling that an employer should be doing things differently. The only downside in seeking advice is that you might learn that your boss is following the law and that the law stinks. The upside is that you might have the ability to pursue a claim that both corrects mistreatment of you and makes it more likely that other employees will be treated fairly in the future.
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