Wage and hour class action lawsuits are on the rise in U.S. Courts. Between 2000 and 2006, the number of class action suits plaintiffs filed annually under the Fair Labor Standards Act (FLSA) nearly doubled. In 2009 alone, workers registered 23,845 wage and hour complaints with the U.S. Department of Labor. Employees are also bringing suits against employers for violations of employees’ workplace rights under state wage and hour laws. To better understand wage and hour lawsuits, it is necessary to the types of claims plaintiffs are bringing and the reasons these lawsuits are so popular.
Types of Wage and Hour Violation Claims
Most wage and hour class action suits allege one of two unfair employment practices: improper exemption or off-the-clock work. The FLSA requires employers pay employees time-and-a-half for any hours that employees work in a week beyond 40. The FLSA excludes some positions from the time-and-a-half rule, such as management, administrative and professional. Improper exemption lawsuits argue that employers classified a job in one of the exempt categories when it should not have been, in order to avoid paying overtime. A particularly large number of lawsuits center on classifying outside sales employees as exempt. Employees seek back overtime pay as their damages in these suits, in the form of liquidated damages.
In an off-the-clock work suit, employees allege that employers did not pay them for all of the time the employees worked. Common examples include when employees are not paid for time they spend putting on and removing necessary safety equipment, times when employees miss meal breaks but the employer automatically deducts time for such breaks from the employees’ paychecks or unpaid time readying equipment like computers for the beginning of a shift. Employees seek back pay for the times when they were doing work-related activities but were not paid for them, in the form of liquidated damages. Plaintiffs in both types of suits may also seek punitive damages against the employers if the employers’ conduct was particularly egregious.
Popularity of Wage and Hour Suits
Class action lawsuits appeal to current employees of a company because those employees often see the wage and hour class action as their only hope for a remedy for the wrongs that their employers have committed. If the employees tried to bring claims individually, the amount of money at stake would be less than it would cost to bring a lawsuit.
One of the reasons that wage and hour class action suits are on the rise, is that the standards for certification under the FLSA are less stringent than certification of a class in lawsuits brought under other laws. In a typical class action lawsuit, in order for the court to certify the class, the class representatives must show that
- the members of the potential class are too numerous to join individually in the lawsuit;
- there is a common question of law or fact involved in each class member’s suit;
- the class representative’s claim is typical of the claims of the class; and
- the class representative can adequately represent the members of the class.
In order for the court to certify a class under the FLSA, the plaintiffs must show that they are bringing suit for themselves and other employees who are “similarly situated.” However, the FLSA does not define similarly situated, so the court is left to determine what that means.
Many courts have a two step process for determining whether employees are similarly situated. The court will determine whether there is enough evidence in the pleadings of the lawsuit to grant a conditional certification and send notice to all potential members of the class. Those employees may then opt into the suit in writing. After the parties have completed discovery and the court has enough information to determine whether the class members are indeed “similarly situated,” the court will either grant certification or decertify the class. Having the judge make a final decision about certification after discovery is complete tends to increase the likelihood that the court will certify the class.
Analysts suggest that another reason that wage and hour suits are increasingly popular is that many former employees of a company who get notice of a potential class action suit in the current poor economy feel like they have nothing to lose by joining the suit. Their numbers swelling the ranks of the class also makes it more probable that the court will certify the class.
Wage and hour class action lawsuits continue to thrive in the courts. Many employees view the wage and hour suit as a viable mechanism to stop employers from abusing them and to make employers obey labor laws. If you have suffered as a result of a wage or hour violation, please contact an experienced employment law attorney who can advise you of your options.