What you need to know about unpaid overtime laws and lawsuits

If you have been denied overtime pay, you likely have many questions.  What are the overtime laws?  Who should I talk to about overtime pay?  What if I can’t afford an overtime attorney?  What happens if I hire an overtime attorney?  What are the steps in an overtime lawsuit?  This article aims to answer these questions and simplify the overtime lawsuit process.  

What are the overtime laws?  

The Fair Labor Standards Act (“FLSA”) is the federal law that governs overtime pay. Under the FLSA, employers are required to pay their employees overtime wages at a rate of one and a half times that employees regular rate of pay for any hours worked above 40 in a given workweek, unless the employees fall within certain exemptions.  Whether an employee is exempt from overtime pay depends on the employee’s duties. 

Who should I talk to about overtime pay?  

To determine whether a worker is entitled to overtime pay or not, one should speak with an experienced overtime pay attorney.  Many attorneys claim to handle overtime pay issues, but few focus their practice on such cases.  When you interview an attorney regarding overtime pay issues, ask them how many overtime pay cases they have filed in the past five years.  If you get a long-winded or evasive answer, move on.  Our firm has filed more than fifty overtime pay lawsuits in the past five years, many of them class and collective actions, and has recovered overtime pay for hundreds of workers during that time.  We have filed suits in every federal district in Texas as well as in Arkansas and New Mexico.  Our firm focuses on overtime pay lawsuits – it is what we do.   

What if I can’t afford an overtime attorney?  

You should not have to pay an attorney to handle your overtime case.  The overtime cases that our firm accepts are handled on a contingency fee basis.  In other words, we only get paid if and when our clients recover money from their current or former employer, and if our clients do not recover money, we do not get paid.

What happens if I hire an overtime attorney?  

During your initial consultation with an overtime attorney, he or she should walk you through the various steps of an overtime lawsuit.  The general phases of an overtime suit are set forth below.  

Step 1: Investigation/Complaint Stage

When an employee believes that he or she has been denied overtime pay, the first step that an employee should take is to consult with a lawyer to file an unpaid overtime lawsuit. Assuming that the attorney believes the worker has a case, suit will be filed, most likely in federal court.  The employer will be served with the lawsuit, and will have a certain amount of time to file an answer.  Once the employer’s answer is on file, the court will likely enter a scheduling order with various deadlines including the trial date. 

Step 2: Discovery

Once the initial steps in the lawsuit occur, the parties will then engage in discovery, which involves the exchange of documents and information.  This allows the parties to better understand the facts of the case before trial.  An employee is able to request from the employer all of the employee’s records, including documents showing the employee’s wages and the hours worked.  If the employer does not have or did not keep time records, the employee is entitled to estimate how many hours he or she worked each week.  The parties can also take depositions, which are question and answer sessions of witnesses under oath.  

Step 3: Motion practice

Once documents are exchanged and depositions are taken, the parties may engage in motion practice.  The parties may file what are called summary judgment motions, in which the parties ask the court to rule on various legal issues.  Overtime issues that are commonly the subject of summary judgment motions are whether the worker is exempt from overtime pay, whether the owner of the company is liable for the company’s overtime violations, whether the company’s FLSA violations were willful or whether they were made in good faith.  All of these issues can be decided by the court before trial in certain cases.  The parties may also mediate their dispute with a neutral attorney (known as a mediator), whose job it is to try to get the parties to settle their claims.  Mediation is non-binding, meaning neither party can be forced to settle if they do not want to.  

Step 4: Trial

Lastly, if the parties are unable to settle their dispute, the court will hold a trial.  The judge or a jury will determine whether the worker is owed overtime, and if so how much.  

The process to recover unpaid overtime may seem complicated but experienced overtime attorneys routinely handle such cases and can help you make informed decisions regarding your legal rights. If you believe that you have a claim to recover your unpaid overtime, consider speaking with an experienced overtime attorney. Josh Borsellino is a licensed Texas attorney that fights to recover unpaid overtime for workers.  Call him today at 817.908.9861 or 432.242.7118. 

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