THERE are valid overtime or meal break claims that are too small to require a lawsuit. If they are litigated, the litigation may cost too much and the payoff may not be worth the problem. Other than the size and expense, there is also the very real possibility that employers may retaliate against the employee who is trying to assert his/her rights. These are some of the major concerns as to why small overtime claims are rarely pursued and employers continue to get away with their violations.
However, if the employee is but one of many other employees who is not paid overtime despite working more than 8 hours per day or more than 40 hours per week, or are not provided meal breaks, they may be able to assert their rights as a group. They can do this by means of a class action.
What is a Wage and Hour Class Action?
It 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, that is, not being properly paid overtime wages by their employer. 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.
What are the advantages of a Class Action?
A class action benefits employees for the following reasons:
1) If the individual overtime claim is modest and may prove costly if pursued as an individual action, a class action will provide low-wage workers with a relatively inexpensive way to resolve their overtime claims. Note that 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.
2) A class action may minimize the risk of retaliation against an employee member of the class. It is undeniable that current employees who individually sue their employers face a greater risk of retaliation. Fear of economic retaliation might induce aggrieved employees to keep silent and endure the violation. Courts have recognized that fear of retaliation for individual suits against an employer justifies a class certification in an employment litigation even if the number of employees necessary to form a class has not been met.
3) A class action may serve to notify, inform, and educate employees who do not know that their legal rights have been violated. For example, some workers, particularly immigrants with limited English language skills, may be unfamiliar with the overtime laws. Even English-speaking or better educated employees may become confused with the complexities of the laws. Also, some employers misinform their employees that they are not eligible for overtime.
4) Government resources which handle wage claims are inadequate. If there are one thousand employees from the same employer individually making the same claims before the Division of Labor Standards Enforcement (DLSE), a deluge of such claims would simply outstrip the resources of the DLSE, affecting not only these claims but other unrelated claims as well. Without private enforcement through class actions the DLSE’s resources to resolve labor claims would be overtaxed. Class actions can prevent ‘a failure of justice in our judicial system’ by enforcing legal rights and statutory sanctions.
A class action is a potent weapon available to employees in order to challenge labor violations by the employer. It will compel an employer, who engages in minimal but widespread violation against each individual employee, to properly compensate these employees for their valid claims. More importantly, an overtime class action may be the only way to impose the costs of labor violations on the employer. A class action sends the message that violation of laws that protect employees can be ultimately expensive, and thus, deter future violations.
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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 followaing 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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