How to Prepare for a Wages and Overtime Pay Consultation

Wage and hour laws set the basic standards for minimum wage and overtime payments in the workplace. The primary source of these regulations stem from a federal law that is known as the Fair Labor Standards Act (“FLSA”). The FLSA is divided into four different sections: recordkeeping, overtime payments, minimum wage requirements, and restrictions on child labor. 

However, not every worker is eligible to receive protection under the FLSA. For example, some employees that might be exempt from the FLSA’s provisions include employees who perform executive work like running a business or professional work that requires advanced knowledge to do the job. Thus, the first step in preparing for a wages and overtime pay consultation is to determine whether you are covered by the FLSA.

Next, you should review your employment materials and then set-up a meeting with your supervisor or a human resources manager at your company. They may be able to resolve the issue with a conversation and can fix the error if it was a simple miscalculation. If the problem still exists after you read through all of your employment materials and meet with a supervisor at your company, you should begin searching for the requirements to file a complaint. 

Prior to bringing a lawsuit, an employee must file a complaint with a government agency. The government agency will investigate the complaint. They will issue a decision on whether the employer is in violation of workplace policies and/or federal and state employment laws. If the investigation does not solve the issue, then the employee should search for and hire a local employment lawyer.

An employment lawyer can look over the facts of their case, inform them of their rights under the law, and can discuss their options for legal recourse if there are any available. Before meeting with an employment lawyer, the employee should gather evidence related to their claim. These include pay stub documents, timesheets, and complaint emails submitted to their supervisor or human resources department.

The employee should also prepare a list of questions they have for the lawyer and be able to clearly explain the dispute they are having with their employer. For instance, if their employer is refusing to pay them for working overtime, they should tell this to their lawyer. In addition, such cases may be more successful if the employee can find other workers who are experiencing the same wage and overtime payment issues.

What Documentation and Questions Should I Prepare Before Meeting with My Employment Lawyer? 

A worker who is involved in a dispute concerning wages or overtime payments should bring certain documents with them when they meet with their employment lawyer. The documents that a worker chooses to bring should be ones that can help the lawyer determine whether they have a viable claim. 

Some examples of documents that may be useful include:

• Documents that contain work-related payments, such as pay stubs, timesheets, bank account statements, bonus amounts, work schedules, tax returns, and so forth;
• Documents that provide employment guidelines like the worker’s employment agreement, their employee handbook, or their employer’s policies on wages and overtime payments;
• Other evidence that proves a payment dispute or violation occurred (e.g., emails, images, videos, recordings, text messages, complaint letters sent to human resources about the issue, etc.);
• A list of potential witnesses or other workers who can either testify that the dispute occurred or that they are experiencing the same problem; 
• A record of how long the issue persisted and how much the employer potentially owes the worker in missed payments; and/or
• Various case-related documents (e.g., completion of mediation or arbitration session, a notice to sue from a government agency, etc.). 

In addition, a worker who has a wage or overtime pay issue should also prepare a list of questions before meeting with their employment lawyer. This list may contain questions about the case itself or about the lawyer’s experience with similar cases. 

For example, if a worker is meeting with a lawyer to decide whether they want to hire them, then they should ask the lawyer questions about their billing rates, past track record with similar issues, and their level of experience.

On the other hand, if the worker has already hired a lawyer and is meeting with them to review the details of their case, then they should ask questions about the case itself. Examples include whether the lawyer needs additional evidence or what types of remedies they can recover if the case is successful.

What Makes a Wages and Overtime Pay Case Strong? What Makes it Weak? 

Some factors that can make a case for wages and overtime pay stronger include:

Providing solid evidence of the payment dispute or violation, such as financial records, employment documents, and testimony from other workers;

Hiring an employment lawyer to represent the worker in court and to inform them of their rights under the law;

Preparing a persuasive argument and creating an organized case strategy; 

Obtaining a letter to sue from a government agency that proves the issue was investigated prior to filing the lawsuit;

Confirming that the worker is covered by relevant wage and hour laws, as well as is eligible to receive overtime payments; and/or

Proving that a substantial amount of the employee’s wages or overtime payments went missing, were lost, or their employer refused to pay them.  

Some factors that can make a case for wages and overtime pay weaker include:

• Miscalculating the amount of wages earned;
• Not checking whether the employee is covered under wage and hour laws;
• Destroying valuable evidence or not having enough to support a claim;
• Not hiring a lawyer to present the case in court; and/or
• Not filing a complaint with a government agency first or waiting to receive a notice to sue letter before bringing a lawsuit.

What are Some Dos and Don’ts for Wages and Overtime Pay Cases? 

Some dos for wages and overtime pay cases include:

• Do hire a lawyer to assist with a wage and overtime pay case;
• Do review company policies and other employment materials (e.g., employment agreement, employee handbook, etc.); 
• Do keep track of all hours worked; 
• Do treat all parties to a lawsuit with respect, including those employed by a court (e.g., a judge, bailiff, court clerk, etc.);
• Do retain copies of pay stubs, timesheets, and other work-related financial statements;
• Do preserve other evidence related to the overtime pay case (e.g., conversations with supervisors that take place over email or text messages);
• Do speak to human resources or a supervisor before submitting a complaint to a government agency or filing a lawsuit; and
• Do remember to ask a lawyer questions about the case (e.g., how long it will take, the potential remedies a worker can recover, possible consequences, etc.).

In contrast, some don’ts for wages and overtime pay cases include:

• Do not bring a lawsuit without consulting a lawyer first;
• Do not behave disrespectfully towards an employer during the case, even if they did violate the law;
• Do not schedule a meeting with human resources or file a complaint with a government agency before reviewing company policies, the employee handbook, and/or the worker’s employment contract first;
• Do not lie about an employer’s conduct or falsify payment documents (e.g., the employee’s timesheets or pay stubs);
• Do not destroy or throw away any evidence, even if it might hurt the case;
• Do not ignore the payment issue and assume it will go away on its own; and
• Do not steal from an employer to make up for missing payments.

When Do I Absolutely Need a Lawyer for Wages and Overtime Pay Issues? 

Lawsuits concerning disputes over wages and overtime payments can become fairly complicated. Such matters often depend on the facts and legal issues in a specific case. Wage and overtime pay issues may also require extensive knowledge of both federal and state employment or labor laws. Thus, given the complex nature of wages and overtime pay issues, you will most likely need to hire a local employment lawyer in order to resolve your dispute. 

You will absolutely need a lawyer if your wage and overtime pay issue can be filed as a class action lawsuit. For instance, if you and many of your colleagues are experiencing the same payment issue in the workplace, then you may be able to bring a class action lawsuit against your employer. 

Generally speaking, an individual typically cannot represent themselves pro se in a class action lawsuit or bring one on behalf of their class members without legal representation. Therefore, you will need to hire an attorney to file this type of case.

In addition, you will also need to hire a lawyer if there are outstanding issues that only affect you (e.g., as an individual worker) after the class action lawsuit is settled. Alternatively, you may also need to hire a lawyer if you attended mediation and it failed to resolve your issue. In such cases, a lawyer can explain to a court why it is necessary to have a judge intervene and can provide representation in court if the case goes to trial.

Finally, you should hire a lawyer if your wages and overtime pay issue involves a dispute over unpaid overtime wages that results in employment retaliation. A lawyer who has experience with handling employment matters can ensure that your rights are protected and that your employer does not retaliate against you for trying to claim unpaid wages. 

Also, if your employer does retaliate against you, your lawyer can help you get your job back and possibly recover damages as well.