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UNPAID HOURS AND OVERTIME COLLECTIVE AND CLASS ACTIONS

Unpaid Wages, Unpaid Overtime, and Unlawful Deductions in Minnesota.

The Fair Labor Standards Act (FLSA) and Minnesota Fair Labor Standards Act (MFLSA) mandate that employers:
1) pay their employees at least minimum wage for all hours worked; and
2) pay employees time and a half for overtime worked.

The federal Fair Labor Standards Act – FLSA – allows workers to pursue actions for unpaid minimum wage and unpaid overtime together in one, collective action.  This allows employees who may not have much bargaining power on their own against a large corporation to band together and form a more powerful force to ensure that they are paid the wages that are due.

The reason that Congress allows workers to pursue collective actions is that, oftentimes, the unlawful pay practices that applied to one employee (like working off the clock or misclassification) applied to all employees in that position – so all employees would be due their wages and overtime.

The way it works is that, after you bring a lawsuit for unpaid minimum wage or overtime under federal law, your employment lawyer would make a motion to certify your case as a collective action.  Basically, we’d need to show that other workers are similarly situated to you, and were subject to the same unlawful practices.  If the motion is granted, then the Court sends a mailing to all employees who have worked in that position over the past 3 years to inform them of the action and ask if they want to participate.  If the employees want to participate, they just need to fill out the enclosed form and send it back in.

The reason that a collective action benefits you is that – generally speaking – the more employees that sign up, the more pressure is exerted on the employer and the more anxious they become to do the right thing and pay you what you’re owed.

Minnesota law allows employees to pursue unpaid overtime, unpaid wages, and unlawful deductions as class actions with other employees.  Again, this allows an individual employee who may not have much bargaining power on his own to join forces with other individual employees to form a more powerful force for the employer to deal with.

The process is that, after the lawsuit starts, we make a motion to the court to certify the case as class action.  We basically need to show that your employer’s unlawful pay practices applied to other employees like you.  If the Court grants the motion and certifies the class, then the Court sends a mailing to all employees who had the same position in the past 3 years and tells them that, if they want to opt out of the lawsuit, they can do so by filling out and sending in an enclosed form.  Otherwise, they will be part of the class action.

The reason that a class action benefits employees is that – generally speaking – the more employees that form the class, the more pressure is exerted on the employer and the more anxious they become to do the right thing and pay you what you’re owed.

By federal law, employers must pay their employees at least $7.25 per hour as minimum wage – that number hasn’t changed since 2009.

In Minnesota, though, the minimum wage is $9.86 per hour.  Because the state minimum wage is greater than federal minimum wage, Minnesota employees are entitled to the higher of the two – that is, Minnesota employees are entitled to be paid at least $9.86 per hour.

If your employer does not pay you at least $9.86 per hour, then it has violated the Minnesota Fair Labor Standards Act.  Sometimes these violations are easy to spot, such as if an employer tells you that your hourly wage is less than $9.50.

But minimum wage violations also include off the clock work violations.  Sometimes employers require employees to perform work “off the clock.”  For example, your employer might tell you to:

  • Be at work at least 10 minutes before the start of your shift, but don’t punch in until your shift starts;
  • Put on certain equipment or your uniform before punching in – these are called “donning” claims;
  • Take off your equipment or uniform while off the clock – these are called “doffing claims;
  • Continue working off the clock at the end of your shift if you didn’t meet your performance goals for the day; or
  • Tell you to come in on a weekend or early morning and work off the clock to meet performance goals.

All of this off the clock work could constitute minimum wage violations under both state and federal law.  To see if you have a claim, take the number of hours that you actually worked (not just the time that you were paid for on the clock) and divide it by your pay for the week.  If the number that you get is below $9.86, then you’ve got a minimum wage claim.

Even if you don’t have a minimum wage claim, you still have a breach of contract claim for hours worked off the clock.  You and your employer have a contract (it doesn’t have to be in writing) for you to be paid a certain wage for all hours worked.  If you’re working hours that your employer isn’t paying you for, then your employer has breached its employment agreement with you.

The federal Fair Labor Standards Act says that employers need to pay employees time and half for all hours over 40 that they work in a week.

The Minnesota Fair Labor Standards Act says that employers need to pay Minnesota employees time and half for all hours over 48 that they work in a week.

You’re entitled to the protection of both federal and state overtime law.  So if your employer isn’t paying you overtime for hours over 40, then you’ve got an overtime claim against your employer.

Sometimes these claims are easy to spot, like when your employer is just paying regular time even for hours worked over 40.

But you may also have overtime claims in cases of off the clock work.  If your employer is making you work off the clock, and your off the clock time combines with your on the clock time to bring you over 40 hours in a week, then your employer owes you overtime for those hours.  Off the clock time includes when your employer tells you to:

  • Be at work at least 10 minutes before the start of your shift, but don’t punch in until your shift starts;
  • Put on certain equipment or your uniform before punching in – these are called “donning” claims;
  • Take off your equipment or uniform while off the clock – these are called “doffing claims;
  • Continue working off the clock at the end of your shift if you didn’t meet your performance goals for the day; or
  • Tell you to come in on a weekend or early morning and work off the clock to meet performance goals.

If your employer has made you work off the clock, then you may have an overtime claim.  To understand whether you have a claim, take the number of hours that you actually worked in a week (not just the hours that you were paid for).  If that number is greater than 40, then you likely have an unpaid overtime claim.

It’s true that certain jobs are considered “exempt” from overtime rules – that means that employers don’t need to pay overtime to “exempt” employees who work over 40 hours.  Jobs exempt from overtime pay include:

  • Employees of certain seasonal amusement or recreational establishments (think: State Fair or carnivals);
  • Employees of certain small newspapers;
  • Farm workers employed on small farms;
  • Babysitters;
  • Highly compensated employees who do office work (or other non-manual work) and make $100,000 or more each year;
  • Auto, truck, or farm salespersons and mechanics;
  • Railroad and airline employees, taxi drivers, and certain employees of motor carriers; and
  • “White collar” employees who perform management, administrative, or executive duties.

But employers often misclassify employees as salaried or exempt when they shouldn’t.  For example, some employers try to classify secretaries as exempt because they perform administrative work.  But for the administrative exception to apply, the employee’s primary duty must include the exercise of discretion and independent judgment with respect to matters of significance – most secretaries wouldn’t meet that test and therefore qualify for overtime pay.

If your employer misclassified you as a salaried employee or exempt employee, then you likely have a good overtime claim, because your employer owes you time and a half for all hours that you worked over 40.

To calculate your hourly rate, take your weekly salary and divide it by 40 – that’s your rate.  Your employer owes you time and half of that amount for all hours that you worked over 40.

Your employer is required by state and federal law to keep accurate records of all hours that you worked.

But, of course, sometimes employers don’t comply with the law, especially if they’re making employees work off the clock.

Of course it is fantastic evidence if you keep records of the hours that you worked off the clock – the more detailed the better.  If you can, keep a diary with the date, time you started work, and the time you ended.  That is very powerful evidence in a minimum wage or overtime case.

However, the law recognizes that most employees can’t do that and places the burden on employers to keep accurate records of hours worked by employees.  Therefore, when an employee can show that an employer’s records are not accurate – by testifying that employees had to work off the clock – then the law allows employees to estimate the amount of time they worked off the clock in their testimony and submit that to the jury.

Minnesota state law requires employers to provide employees working a shift of 4 hours or more sufficient time to use the restroom.  If the break is less than 20 minutes, your employer can’t require you to punch out for it – it must be compensated.

If you work a shift of 8 hours, your employer must provide you at least 30 minutes for a meal break.  That break, however, doesn’t need to be compensated like restroom breaks.

If your employer does not allow you to take restroom or meal breaks, you likely have a claim under the Minnesota Fair Labor Standards Act.

The Minnesota Payment of Wages Act prohibits employers from taking deductions from employees’ paychecks for: lost or stolen property, damage to property, or to recover any other claimed indebtedness.

Even if you have authorized the deduction, most such authorizations are void under Minnesota law.  The bottom line is that if your employer is taking money out of your paycheck, then you probably have a claim under the Minnesota Payment of Wages Act.

This is a common problem – so common that Minnesota law specifically addresses it.

If your employer won’t give you your last paycheck, the first thing you should do is send a letter or email asking for your last paycheck to your employer.  Make sure to put the date on the letter and sign it.  If possible, send it via certified mail so there’s a record of when your employer got it.

Your employer needs to pay you within 24 hours of receipt of the letter.  If it doesn’t, then it owes you those wages plus an extra day’s wages up to 15 days for every day it doesn’t pay as a penalty.

For minimum wage and overtime claims, you can get the actual amount that you’re owed in minimum wage and overtime, plus an equal amount as liquidated damages.  So you basically get twice the amount of actual damages that you’re owed.  Additionally, your employer will be required to pay your attorney fees and costs of litigation, plus interest on the amount of wages it owed you.

For unlawful deductions, you can get the actual amount of money deducted plus an equal amount in liquidated damages – so again, twice the amount of actual damages.  Also, if you win, your employer will be required to pay your attorney fees and costs of litigation, plus interest on the amount of deductions.

Under both state and federal law, the statute of limitations for unpaid overtime and minimum wage claims is 2 years; and 3 years if we can prove willfulness by your employer.  That basically means we need to show that your employer was reckless in disregarding the law – then we can go back 3 years for your damages.

No.  The Minnesota Fair Labor Standards Act, the Minnesota Payment of Wages Act, and the federal Fair Labor Standards Act all  contain anti-retaliation provisions.  If your employer terminates you for making a report or complaint of unfair or improper pay practices, then you’ve got a retaliation case in addition to your unpaid wages case.

First of all, we’re sorry that you’re in this position.  We know how hard you work, and you deserve to be paid for all of the hard work you do for your employer.

Second, call us for a free consultation to talk about your case.

Contact Our Minneapolis and St. Paul Class Action and Unpaid Overtime Attorneys for a Free Consultation.

All consultations are free. During your consultation, we’ll discuss the strengths and weaknesses of your case, the potential value of your case (e.g. how much your case is worth), and the best way to proceed.

The process for a free consultation with our employment lawyers is pretty simple. First, call our firm. You’ll talk to a clerk for about 5-10 minutes. They’ll get some basic information about you and your case.

About 3 or 4 hours later, you’ll get a call from us. If you’ve got a case that’s a little outside our wheelhouse, then we’ll will call you and give you a referral for an attorney that we think is better suited to handle your case. Our number one goal is to make sure you get the best representation possible for your particular matter – if that’s not us, we’ll tell you immediately and get you to someone else that we trust.

If we think that we can help you, then someone will call you and set an appointment for you to talk to one of our employment lawyers. We’ll call you at time that works for you and discuss your case and give you our honest assessment of its strengths, weaknesses, and value. We’ll then set a time where you can come to our office and meet your employment lawyer personally – at that time, we’ll discuss your case in more detail, sign a contingency fee retainer agreement, and talk about the process of moving forward with your case.

Representative Case

We represented “Maria” – a housekeeper at a hotel run by a national hotel management company.  The company mandated that Maria and her coworkers work 20-30 minutes off-the-clock in the morning, before their shifts, as well as 30-60 minutes off-the-clock in the afternoons several days per week.  Additionally, the company denied Maria and her peers meal breaks – and even restroom breaks.  Finally, Maria’s supervisor stole the tips left for housekeepers by hotel guests.  Madia Law won collective and class certification for the housekeepers in federal court.  After two years of litigation, the company settled the case for an average recovery of $20,000 per plaintiff.

THE MADIA LAW WAY

We have a process that works in getting exceptional results for our clients. 

We are trial lawyers who prepare every case for trial from Day 1. Investigation and legal research are the first things we do, and we spend a lot of time on them. Because we haven’t filed the case yet, we have complete control – the defendant has no say and we want to use this time wisely.  We interview witnesses that can help us prove the case.  We’ll ask you for all relevant documents in your possession and review those carefully as well.  We also will spend some time conducting legal research about unique issues in the case.  We pull the jury instructions that the judge will ultimately charge the jury with after closing arguments at trial. 

Our next step is typically to send a demand letter to the defendant. In the letter, we thoroughly lay out: the facts surrounding the defendant’s misconduct; the applicable law (including statutory and case citations) that make clear that the defendant broke the law; an analysis of your damages and the defendant’s monetary exposure; a demand for a monetary amount to settle the claim; and an instruction to preserve all relevant evidence, including electronic evidence. The point of this letter is to give the defendant a chance to do the right thing and pay a fair amount before litigation, and to give the defendant an opportunity to present any defenses or evidence it wants us to consider before moving forward.  Sometimes we skip the demand letter if there are strategic reasons to move straight to filing, but we typically give defendants a chance to do the right thing.

If early negotiations fail, great – we file a Complaint and serve the defendant with it. A Complaint is a legal document that states the facts of what happened and alleges how the defendant broke the law. It formally starts the lawsuit.  Many lawyers draft complaints in a general and relatively vague way, just to get it done and filed – because that’s all that’s really required.  We take a different view. We view the Complaint as our first chance to tell your story to the judge, and we take it seriously. So we draft detailed complaints and include legal citations to statutory and judicial authority on unique points.  Sometimes we’ll include a number of exhibits, diagrams, or other demonstrative aids to help the Court understand our claims.  A secondary benefit of this approach is that defense lawyers reading the Complaint can become educated on the problems of their case and the state of the law – sometimes this leads them to reach out to us shortly after service of the Complaint to re-initiate settlement negotiations.  Of course, by that time, the price for settlement has gone up.

Some lawyers view written discovery as a necessary evil – something to get done and out of the way before depositions.  Not us.  Written discovery is a gift and an opportunity.  We spend a great deal of time crafting requests for documents and interrogatories (questions for the defendant to answer in writing) that are specific, detailed, and tailored to get what we need to prove our case.  Many lawyers – even great ones – think written discovery is a waste of time because defense lawyers typically answer them on behalf of their clients and can try to stonewall with legalese and objections.  We view this as a wonderful opportunity.  In our experience, most defense lawyers can’t help themselves when answering discovery: they over-state their defenses and make assertions that their clients will not be able to support in testimony. So we get to commit the defendant to defenses that they can’t back up, leading to contradictions, confusion, and chaos in their depositions later on.  We also use Requests for Admission – which many lawyers don’t.  The Federal Rules and Minnesota Rules of Civil Procedure allow us to ask defendants to “admit” certain facts.  We send them RFAs that are very difficult for them to deny.  Of course, they do it anyway, but that sets them up later for cost and fee-shifting, which the Rules mandate for defendants that deny RFAs that are later proven true.  And usually, we can get the defendants’ own witnesses to admit facts that their defense lawyers denied in RFA.  That’s a great situation that leads to more chaos and confusion on the defense side.

One last point on written discovery – we send multiple waves of it throughout discovery.  We typically send 3 or 4 sets of written discovery requests to defendants throughout discovery.  This compounds the problems for them, because the defense lawyers continue to overstate their defenses, but now run into contradictions from not just the defendant witnesses’ deposition testimony, but also their own previous discovery responses.  This makes for a great record that we can present to the judge at dispositive motions, and use for impeachment at trial.

This is our chance to question relevant witnesses, on the record with a court reporter (we typically videotape important depositions as well). We get to confront the defense witnesses with all of the evidence we’ve developed through written discovery and document production. By this time, the defendant put its witnesses in an impossible position through its written defenses, which are often untrue and indefensible.  So the witness has to either lie to support the defense, or admit it’s not true.  That’s a dilemma that works for our clients either way, no matter which option the witness takes.  We use depositions to expose contradictions, create a record for dispositive motions, lock witnesses into their stories so that we can impeach them later at trial, and sometimes, to show defense lawyers how hopeless their case is.  We often calls from defense counsel shortly after depositions of their clients, seeking to re-start settlement negotiations.

The defendant will usually make a motion for summary judgment after discovery, asking the Court to throw out the case without having a jury trial. Because we’ve hit discovery so hard – both through written discovery and depositions – this is a tough motion for defense counsel to write in our cases.  We draft our response for the Court and now get to bring everything together: the admissions, contradictions, nonsense, and obvious fact disputes that we’ve uncovered through discovery.  We tell a compelling story that wraps everything together for the Court and makes clear that the defense motion has to be denied, and the defendant needs to face a jury for its conduct.

Sometimes, we’ll even make an affirmative motion for summary judgment, asking the Court to grant judgment in favor of our client without a trial. These motions are generally rare for plaintiffs to make, because the defendant can usually point to some fact dispute on its intent or some other factor that necessitates a trial. But we make affirmative summary judgment motions significantly more than is typical for plaintiffs, and that’s because the work we put in during discovery helps build a fantastic record to do so.

After the Court denies the defense motion for summary judgment, the defendant has only 2 options: 1) do the right thing and pay you a fair amount to our client to settle your claim (usually much, much more at this point than the defendant could have paid at the beginning of the case to settle); or 2) face a jury for its conduct and risk an enormous verdict. This is the dilemma that we have been creating and forcing the defendant into for the entire case. We’ll engage in settlement negotiations at this point from a position of extreme strength, mainly because most defendants are (rightly) terrified of facing a jury to defend their conduct.

This is, candidly, our favorite part of the case – why we went to law school: to hold the powerful accountable before juries.  We prepare heavily for trial, including: detailed witness preparation, focus groups, and mock trials.  At this point, the potential outcomes and consequences for the defendant are much more severe than if it simply did the right thing at the beginning of the case and paid a fair amount to compensate our client for its misconduct.  As we advocate to the jury for our client, we’re also mindful of protecting the record so that defendants will be unsuccessful in attacking the verdict in post-trial motions or appeal.

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