What Your Lawyer Will Do in a Wage or Overtime Case

Find out how a lawyer can help you get the overtime or other wages you’re owed.

If your employer owes you overtime or other wages, an employment lawyer can help you take the steps to recover the money that you have earned. This article explains how a lawyer will evaluate your potential wage case and the various ways that a lawyer can help get you compensated. To find out more about the wage and hour laws governing your state, check out Nolo’s article Wage and Hour Laws in Your State.

Wage and Hour Claims

All employers must comply with certain federal and state laws that require, among other things, that each employer must pay its employees:

  • at least the federal minimum wage (or the state or city minimum, if higher)
  • premium pay for overtime hours worked (except for exempt, salaried employees; for information about overtime rights, see Overtime Pay: Your Rights as an Employee), and
  • the agreed regular pay rate for all regular (non-overtime) hours worked.

Your employment lawyer will assess your claims and determine the amount in unpaid wages that you’re owed under federal, state, and city laws. A lawyer can also assess any penalties that are available to you as a result of your employer’s delay, and he or she can help you take the action needed to recover these amounts.

Evaluate Your Claims

The first thing your lawyer will want to see are all the documents that show your employer did not pay you fully for your work. Without these documents showing the hours you worked and your rate of pay, a lawyer won’t be able to assess your claim. The documents you should bring to your lawyer for this evaluation include:

  • paycheck stubs
  • employment contract (if you have one), and
  • clock-in/clock-out records, timesheets, or other documents that reflect the hours you worked.

With these documents, your lawyer can figure out what you were actually paid and what you are still owed, if anything. In addition to crunching your wage-loss numbers, your lawyer will research the applicable law to determine if there are any penalties that you are owed because of your employer’s failure to pay. Based on these numbers, your lawyer can come up with an estimate of what your total damages are.

Discuss Your Options

After evaluating your wage claims, your lawyer will lay out the different courses of action that are available to you to try to recover unpaid amounts.

Demand Letter

One option your lawyer may mention is sending a demand letter to your employer describing the claims you could bring against it. The purpose of such a letter is to find out if your employer is interested in negotiating a settlement of your claims in order to avoid a lawsuit. Your lawyer will discuss the pros and cons of taking this step, which are based on the particulars of your situation.

Mediation

Sometimes, mediation is a more effective strategy in resolving a wage or overtime case. Mediation is a settlement negotiation that involves you and your attorney, the employer and its attorney, and a third-party mediator. A mediator is usually a retired judge or an experienced attorney who facilitates the negotiations. The mediator generally “shuttles” between the parties (who are each in separate rooms with their respective lawyers), carrying offers and counteroffers back and forth. A mediator can also provide an objective perspective on the strengths and weaknesses of your case, which will help you and your lawyer assess its value and the likelihood of your success if you take the case to trial. Your lawyer will advise you confidentially throughout the mediation process.

Mediation only results in a settlement if both parties agree to a resolution. If mediation fails and there is no settlement, you still have your right to file a lawsuit. Mediation can (and often does) take place after a lawsuit is filed. And because mediations are confidential, you can rest assured that information brought to light at the mediation will not be used against you in the lawsuit (unless it's obtained by other means).

Administrative Relief

Certain wage and overtime claims may be handled by submitting them to a governmental agency, such as a state labor department. Agency proceedings are typically less formal than pursuing a lawsuit in court. In general, they involve some type of settlement conference and an administrative hearing (if settlement efforts are unsuccessful). Your lawyer will explain this procedure to you and discuss whether an administrative filing is advisable for your claims.

Lawsuit

Your lawyer will discuss the relative advantages and disadvantages of filing a lawsuit against your employer. Among the factors your lawyer will discuss with you are:

  • what you have lost in unpaid wages and what penalties you may recover
  • what evidence you have to prove your claims
  • any legal issues that may complicate matters (such as any question of whether or not you were exempt from overtime pay requirements), and
  • your employer’s financial health (which is important in considering whether your employer can even pay a judgment if you were to win).

If you and your lawyer decide to file a lawsuit, your lawyer will represent you at all stages of the litigation. Your lawyer will also explain each step of the process to you and what your options are at any given time. And, of course, your lawyer will spend many hours engaged in the legal work required by any lawsuit, including:

  • conducting discovery (gathering documents, getting statements from witnesses, and the like)
  • making and responding to motions to the court along the way
  • representing you at your deposition (where your employer’s lawyer asks you questions, which are recorded as evidence)
  • interviewing and preparing witnesses for trial, and
  • presenting evidence and arguing at trial.

Explaining Each Step

Regardless of the option you choose to pursue, one of your lawyer’s most important jobs will be to translate the process for you so you can make the best decision for yourself.

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