Q. I WORKED for a company for more than 5 years. Throughout my employment, I was regularly asked to work through my lunch breaks or eat at my desk so I can answer the phone if it rings. Because of the workload, I often stayed one or two hours later than my scheduled off time to finish work. I know that as an hourly employee, I was entitled to additional pay if I was not provided at least 30 minutes of uninterrupted meal break or if I worked more than 8 hours per day.
However, it was always a struggle to get my employer to pay these hours, and often, I would not get paid. I finally got fed up with these unfair practices and found another job. I am thinking of filing a wage claim against my former employer for all my unpaid hours. Some of my fellow employees, who suffered as I did, wanted to file with me but they are afraid. They think if they complain, they’ll be fired and won’t be able to find work in this tough economy. I understand their fears and want to help them. Is there a way that I can claim wages on their behalf so they don’t have to?
A. Yes, there is. You may be able to file a claim not only for yourself, but also on behalf of your fellow employees who experienced the same labor violations that you did, by means of a class action.
A wage-and-hour class action is a lawsuit by an employee or a group of employees (called the class representative) on behalf of themselves and all other employees who have the same employment claims. The class action may prove that the employer’s violation of the laws on overtime law or meal breaks is typical of the employer’s treatment of its other employees.
One benefit to filing a class action is that it minimizes the risk of retaliation against an employee member of the class. Current employees who individually sue their employers face a greater risk of retaliation. This fear might induce aggrieved employees to keep silent and endure the violation. But in a class action, a class representative stands for the rest of the other employee class members who are not named in the lawsuit so that these members can also recover their wages.
Another benefit of a class action is that it provides workers with a relatively inexpensive way to resolve their wage claims. An individual wage claim may prove costly if pursued as an individual action. Employees or class members do not pay out-of-pocket fees to attorneys. It is only upon the resolution of the class action and after court approval that the attorneys are paid for their work.
A second mechanism by which an employee may assert the rights of fellow employees is by making a claim under the Private Attorney General Act. This law was enacted to maximize compliance with California’s labor laws. Instead of the State of California pursuing penalties against an employer, the law gives a private citizen the right to pursue these penalties.
Therefore, it essentially allows a private citizen to act as an attorney general and pursue for violations that other current or former employees suffered. The law recognizes that often “the only meaningful deterrent to unlawful conduct is the vigorous assessment and collection of civil penalties as provided in the Labor Code.’
Even if a class action is not filed against an employer, a private attorney general case may still proceed. Through this step, our concerned employee can recover unpaid wages for herself and those that may be due to others. In addition, the employee who filed the lawsuit can be paid 25% of any penalties that can be recovered against the employer.
The employee does not have to worry about paying out-of-pocket expenses or paying attorney’s fees in advance. Meritorious wage claims are handled by attorneys on a contingency-fee basis. The law allows employees to recover attorney’s fees and legal interest from the employer if wages are due to the aggrieved employee.
Private attorney general cases and class actions can be complicated and expensive. Hence, consultation with an experienced attorney is important. Filing these cases, however, help employees obtain just compensation under the law.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayas law.com or contact his office by telephone at (818) 291-0088.
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