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Law Offices of Michael Tracy
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Process

 

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The Process of a Claim

This page will go over what the process is like to make a claim for unpaid overtime wages. There are many different ways to pursue a claim for wages, but it is important to remember that any of them will take time. Please read over the following and hopefully it will answer your questions about what happens during a typical claim. Also keep in mind that every case is different and your case may take a different path than is described here.

Nothing in the foregoing discussion is meant to be legal advice and does not serve to establish an attorney-client relationship.  If you do have a claim, the results of your case will depend on your particular circumstances. In addition, any samples that are given are for illustration purposes only and would not necessarily represent your claim.  Any statements, on this page or elsewhere, are not guarantees of any outcome.

Do You Need a Lawyer?

One of the biggest mistakes that many people make is that they try to do a labor claim on their own through the Division of Labor Standards Enforcement, commonly know as the "Labor Board." You should read this page before you even consider going to the Labor Board.

In addition to being able to assert all of your legal rights, not just the ones that the Labor Board can, my office deals with labor claims on a daily basis. We know what your rights are and how to get employers to pay what you are owed, including penalties. We also know what "fair" settlements are and can make sure that you are not selling yourself short if you do decide to settle.

Of course, there are many simple claims that the Labor Board can handle just fine. In these case, we will tell you to take your case to the the DLSE directly -- you will not need an attorney. However, this page will discuss what happens when you do pursue a claim through my office.

Initial Questions

Before you begin any action for an overtime claim, we make sure that you have a legitimate claim. I will go over the basic of your case with you and make sure that there is merit in your case and that it is for unpaid overtime. If you have a case for wrongful termination, sexual harassment, etc, we do handle those cases as well but you should understand that these types of cases are much more complicated, will take a lot more time, and will involve a lot more work on your part.

Demand Letter

Once we have decided that you do have a case, the first thing we do is send a letter to the employer telling then that they owe you money. We also demand copies of all time records and payroll records -- which you have a right to inspect under Cal. Labor Code §226 and the Wage Orders. This letter is called a "demand letter" because we are demanding that the company pay you your wages.

Frequently, the demand letter contains only your estimates of what overtime you are due. This is because it is the employer's responsibility to keep track of the hours that you work and they do not do this.

Negotiations

In most cases, the employer retains an attorney and their attorney reviews the employer's side of the story. There are times when the employer does not retain an attorney, but it is almost always better for you when they do. The reason is that many employers do not know California labor laws and they do not know how serious the California Legislature is about having them enforced. In addition, when they have to pay their own attorney, it is much less likely that they will put up frivolous defenses. Thus, it is always better when they retain an attorney.

Not only is is better when the employer retains an attorney, but the better the attorney they retain, the better it is for you. This is surprising at first, but the reason is that a good attorney knows the law and can tell when his client has a losing case. As attorneys don't like to lose, and their clients don't like to pay them to lose, a good attorney will simply spell out the situation for their client so that it can be resolved in the quickest manner.

Each case is different, but from the time we send our demand letter until either negotiations have reached a settlement or they have broken down and we have to sue is about 60 days.

Filing the Case

Many of our cases settle well before filing a lawsuit. Unfortunately, this is not always the case, and there is no way to tell which cases will and which cases will not. The most important thing is that we are not afraid to file your case. Some law firms enter into "non-litigation" retainers. That is, they will only try to settle your case, but will not litigate it. I love going to court, and if we have to litigate your case, we will.

Federal vs State Court

While much of the information on this site focuses on California overtime, many overtime violations are also Federal. In these cases, we can sue in Federal Court or State Court. The employer can also have the case heard in Federal Court in a process called removal.

There are various tactical differences between Federal and State courts. Usually smaller claims or claims that have significant factual issues will be taken to State court. If the case has more complicated legal issues and there is little dispute about the facts, we may prefer to file in Federal court. Ultimately, it is unlikely that the choice between the two will be a deciding factor in the outcome of your case.

Arbitration

If you signed a arbitration agreement when you started employment, we may have to arbitrate your case. We have been successful in getting people out of unfair arbitration agreements, but if we do need to arbitrate, it can work out to your favor as well. In short, you should not be too worried either way about arbitration and in some cases we have even demanded it of the employer. However, it is unlikely that arbitration will resolve your case any faster than going directly to court, and it is not really any easier on either the parties or the attorneys.

Discovery

Once the case is filed, there is usually some delay while the papers are served and there may be some legal maneuvering back and forth about some initial legal issues. However, these are handled by my office and you largely don't have to worry about them. It may seem like not much is going on at the beginning -- there is, but it is more legal procedures and not things you directly need to be concerned with.

Once the initial procedures are handled, each side asks the other side for information they need in a process know as discovery. We frequently ask for items that will help prove the hours that you worked -- such as alarm codes being set, parking records, email records, phone records, etc.. The employer gets to ask for information from you as well. Frequently they ask for any information that you already have that supports your claim, any records of your time that you might have kept, etc..

During this time, it is important that you respond to any requests quickly. We have a limited time to provide responses, so it is important that you are on top of things.

Depositions

As part of discovery, both sides are allowed to take depositions of the other party and other witnesses. Depositions are sworn question and answer sessions. They are similar to questioning a witness in court except that they are much more informal and have greatly relaxed rules of evidence. These allow us to probe your employer to help prove your overtime claim.

The employer also has a right to take your deposition. The employer can wait until after initial discovery has been complete, but they can also take your deposition right away. This can be very useful because if your deposition goes well, it can provide a powerful incentive for the employer to pay what is due.

Settlement Conferences and Alternative Dispute Resolution

As the case progresses, the judge may recommend that the parties engage in some type of settlement discussions. Usually this is required when one side is being unreasonable. While it is usually the employer who is being unreasonable, it can also be the employee. If you have a solid claim, you should never accept less than what it is worth. However, there is no such thing as a "sure thing" in the legal field and we will tell you if the employer has a fair offer on the table.

Summary Judgment

Once both sides have all the facts, we meet to determine what remains in dispute. If most of the facts are established one way or another, we can ask that a judge decide any legal issues in the case in a Motion for Summary Judgment. In Federal court, a Summary Judgment can greatly reduce the time of the case. However, in State court, we don't really use this technique because it doesn't save much time. The employer may try to use it, but it is frequently not an efficient use of their legal resources.

Trial

If all else fails, the case will go to trial. Statistically, most cases do not go all the way to trial. For cases that we deal with, it is a very small percentage that actually go to trial. However, your particular case will depend on the merits of your case and the willingness of both you and the employer to settle. The best attitude to have is to assume that it will go through to trial and then see how the case develops.

In general, trial dates are set within one year of the time you file your case. While some cases are more complicated and take more time, we realize that these are your wages and fight to make sure that your case is heard as soon as possible.

Settlements

If the case does settle, you will usually be required to sign a confidential settlement agreement. Sometimes employers try to put all sorts of absurd provisions in these agreements because you have already agreed to settle in principal and they are trying to get additional concessions. As such, it can take a little time from when a general agreement to settle at a specific dollar amount is reached and when the final settlement is signed. Once the settlement is signed, it usually takes about two weeks to get your check.

In short, attorneys do not have a magic wand that makes the employer pay your wages. However, the above describes the tools that we do use in order to get employers to pay your wages as well as any penalties that are due.

 

 

Overtime Updates
January 2017: New minimum wage laws and overtime exemptions
December 2016: New federal regulations for overtime create confusing issues for California workers
New Computer Professional Law wage increase Jan 01, 2015
August 2013: Unpaid internships are illegal.
April 2013: California's executive exemption defined.
California Labor and Employment Law Blog
Meal Break violations can extend back four years
Information Technology (IT) overtime.
VIDEO LINK: Michael Tracy discusses Liquidated Damages for Overtime (QuickTime 6MB)
©2016 Michael Tracy

This website only provides general information about the overtime laws in California and is not meant to be legal advice and does not serve to establish an attorney-client relationship. Please note that labor laws are constantly changing and being interpreted by the courts and you should consult with an attorney to ensure that you have the most up-to-date information. Any statements, on this page or elsewhere, are not guarantees of any outcome. Michael Tracy is a licensed attorney only in California.