If you are a covered employee under federal and state wage and hour laws and you believe your employer violated those laws, you may file a lawsuit against your employer or participate with other employees in a collective lawsuit against your employer.

Individual Lawsuits

Under the Fair Labor Standards Act (FLSA), you have a right to file a private action against your employer for:

  • Unpaid minimum wages, overtime and liquidated damages
  • Monetary damages and equitable relief if you are discharged or discriminated against for asserting your rights under the FLSA

Your right to file a lawsuit will terminate if the U.S. Secretary of Labor either:

  • Files an action against your employer for the same claim
  • Supervises your employer's voluntary payment of all unpaid wages owed to employees

However, you may still file your individual claim against your employer if the Secretary's lawsuit is dismissed upon a voluntary motion by the Secretary, or if the employer's voluntary payment plan fails to pay you the full amount of unpaid wages owed to you.

If you work under an employment contract or collective bargaining agreement, courts are split on whether you must follow any grievance or arbitration provisions contained in those agreements with respect to wage claims. If the arbitration clause is reasonable and does not restrict your statutory rights, it will be enforced.

Collective Actions

One or more employees can file a collective action against the employer to recover unpaid wages on behalf of themselves or other similarly situated employees. Collective actions are not the same class action lawsuits; similarly situated employees can "opt in" by filing a written consent with the court, or they can file their own separate individual actions.

In determining if a collective FLSA action is appropriate for certification, the court will conduct two inquiries. First, the plaintiff employees must present facts to show that they are similarly situated; that is, they are the victims of a common policy or plan to violate the FLSA. Second, the court examines three additional factors to ensure that the employees are similarly situated:

  • That any employment related differences between them are few
  • That the various defenses available to the employer against each plaintiff employee are essentially the same
  • That any fairness and procedural questions of all claims are similar

If the plaintiff employees can still show that they are similarly situated, the court will certify the collective action and other aggrieved employees may opt in. If the court finds that the plaintiffs are too dissimilar, it will dismiss the collective action and the employees must file individual lawsuits.

Cases under the FLSA and state wage and hour laws can be very complex, and an employment law attorney can best assist you in reviewing your possible claims under the FLSA.

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