Sending a Demand v. Filing A Lawsuit
Once we've concluded that there has been a wage violation and that you have a valid claim, we then have to decide if your interests are best served by sending a demand letter to your employer or if we should proceed directly to court with a lawsuit.
Some clients prefer not to do anything because they are currently employed and prefer to wait until they find a new job. We completely understand and respect that decision. You have to put food on the table. In those cases, we sit in a holding pattern for weeks or even months until the client is ready.
Whether to send a demand letter or file a lawsuit depends in large part on the type of employer we are going after. Small employers often have owners who think they can avoid the legal system by ducking service of citation. We always find them eventually, so this merely slows the process down. They only know to avoid service of the citation or summons if they are aware we are trying to serve them. They learn we are trying to serve them if we send a demand letter and they ignore us. If we sense the defendant will try to evade service then we will advise our clients to proceed directly to court by filing a lawsuit.
Filing the lawsuit early also has the added benefit of establishing your claim's value so it won't waste away with each passing week.
Usually, the first call we receive from the employer or the defense attorney often involves a discussion of settlement. The defense attorney, if he or she knows the law, will often see the facts and the law just as we do. If so, the defense attorney will often recommend that their client (your employer) pay you something. That "something" might not be as much as you'd like, but we can at least get the settlement discussion started.
In case you missed them, read our wage and overtime 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