Most people do not have experience reading legal documents or have knowledge about the federal FLSA regulations and state labor laws. This article can give you a guideline about the different phases of an overtime and wage claim, including how long this type of case may take.
Beginning phase of a lawsuit
The beginning phase of a lawsuit is referred to as "discovery," which is an apt term because the parties to the lawsuit are doing just that, discovering facts. We have various legal tools at our disposal to accomplish that goal. We can make requests for documents from the employer as well as request documents from other entities. For example, we always make inquiries to discover the company's history of reported violations.
Filing for Summary Judgment
After the discovery phase we sometimes ask the judge to rule in our favor without the need to go to a jury. We achieve this by filing a Motion for Summary Judgment. We often do this in cases where our clients were misclassified as independent contractors because of the broad definition of "employee" and many employers don't have a leg to stand on to support their classification.
We will constantly send letters to the defense attorney reminding them that if we prevail, the employer has to pay for my attorney's fees as well. In essence, the pressure of the lawsuit often makes employers do what they should have done when they first learned about the lawsuit: pay their employees their wages due.
If the employer digs in his heels, we always have our right to go to trial. We will gather all of the documents and necessary testimony to present your case to a judge or jury. Less than 5% of FLSA lawsuits actually go to trial.
How Long Does A Wage and Overtime Claim Take?
Many of our clients ask how long a wage and overtime case takes. The simple answer is that it depends on the particular facts of a case. For straightforward cases that do not involve class action or collective action issues, we can give an example of a basic timeline.
Keep in mind this is just an example - the actual facts of a particular case decide how long a wage and overtime claim can take.
Day 1: You contact our office and I decide you have a valid claim.
Day 7: We meet in person to review documents, the fee agreement and details
of your case.
Day 30: We file suit or send a demand letter.
Day 45: Defendant is served and defense attorney contacts me. We either discuss settlement or decide to litigate.
Day 90: If no settlement is reached, we file a Joint Discovery Case Management Plan with the Federal court, which is standard procedure. This sets up the deadlines and asks the court to set the case for trial. The court usually sets the case for trial 12 months later.
Day 120: The parties exchange records (pay stubs, time sheets, employee handbooks, job descriptions, etc.).
Day 150: We consider settlement options again. At this time, the parties have a better idea of the strengths and weaknesses of the claims and defenses.
Note: About 25% of my clients' cases are settled or
are close to being settled at this point.
Day 180: If no settlement is reached, we depose witnesses. That is, we obtain oral testimony from relevant witnesses that is recorded and under oath.
Day 210: We consider filing a Motion for Summary Judgment, which is a legal brief asking the court to rule in our favor without the need to go to a trial because the facts and law are so clear.
Note: By this time, more than 60% of my clients'
cases are settled.
Day 270: The court rules on our motion. If the motion is denied, we might seek additional documents and take additional depositions as we continue to prepare for trial.
Note: By this time, more than 90% of my clients'
cases are settled.
Day 360: If we have not settled the case by this time, then we will proceed to trial, depending on the court's schedule.
Keep in mind that this timeline is merely a sample of what might happen. Many of these time periods might increase by as much as 90 or 120 days depending on the legal issues and complexity of the case. The actual facts of a case determine how it will unfold.
In case you missed them, read our articles to get more information.
Wage and Overtime 101
Part One: Overtime and Wage Violation Rates - No Industry is Immune
Part Two: The Basics of Overtime and Wage Claims Under the FLSA
Part Three: Wage and Overtime Lawsuits - Your Options
Part Four: Basic Timeline of a Wage and Overtime Lawsuit