Federal laws ensure workers are paid for every last minute of overtime

May 21, 2013

Federal laws ensure workers are paid for every last minute of overtime

Most New York workers are generally familiar with the federal overtime law that expressly dictates that hourly employees must be paid at least one and one-half times their regular hourly rate for all time worked beyond 40 hours in any given workweek. However, while the rule may appear simple enough on the surface, it can often be difficult to enforce in a daily work environment - for instance, if an employer regularly cuts his employees' lunch breaks a mere few minutes every day.

Sadly, in circumstances in which a New York employee is habitually made to work a few extra minutes each day, he or she may believe it simply isn't worth pursuing a federal claim for his or her unpaid overtime since it would likely be cost prohibitive.

Then again, it is important to keep in mind that these minutes can quickly add up to several hours, not to mention that the Fair Labor Standards Act (FLSA) clearly permits "similarly situated" employees to band their claims together in a collective action. Specifically, these collective actions allow employees that are being deprived overtime due to the same company policy or procedure to pool their resources together in order to pursue their claims - thus lowering the litigation costs for each employee, which in turn makes a legal action more feasible.

"Certifying" an overtime collective action in New York

Before a collective action for overtime wages can begin in New York, the group of employees needs to be first certified. In New York, federal courts generally apply a two step process when making this decision:
-Step 1: Conditional certification in which a New York court makes a "preliminary determination" as to whether the employees are adequately similarly situated. If so, it permits the sending of notice to other potentially impacted employees and allows the case to progress to the discovery phase.
-Step 2: A more stringent factual review in order to determine if the collective action members (employees) are, in fact, similarly situated.

As these steps indicate, the question of whether employees are "similarly situated" is pivotal to certifying an overtime collective action. When determining if employees meet this requirement for conditional certification, courts in New York have said that there only needs to be some modest factual showing or "identifiable factual nexus" that connects the employees together as victims of the same company policy or practice that violates the law.

It is important to note, however, that unlike regular federal class actions, all employees in an FLSA collective action must opt in to the lawsuit after receiving notice, or risk not being included in any potential award. Opting-in basically involves a process in which the employee signs a document affirmatively stating he or she wants to be included in the lawsuit.
Seek assistance if considering an overtime FLSA claim

Generally, employees only have two years in which to bring an FLSA overtime claim - meaning there is very little time to waste. Also, this time is measured when the employee in question actually signs his or her consent to opt in to the collective action, and not when the collective action was commenced.

Consequently, if you or loved one is currently contemplating an FLSA overtime claim, and believe there may be other employees impacted, it is often advisable to speak with an experienced employment law attorney who can outline what your rights and options may be given your particular circumstances.

Article provided by Hacker Murphy LLP
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