Articles Posted in FAQ

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Our law firm is frequently asked by potential clients whether they should or have to join a case for back wages and/or overtime started by one of their co-workers. To answer that question, you need to understand how the class action mechanism works under the Fair Labor Standards Act (“FLSA”). It’s actually called a “collective action” but for simplicity, we will use the term “class action.”

The FLSA permits employees to file a lawsuit as a class action and permit other employees who held similar jobs and who were paid similarly to join the case as class members. The employee who starts the case is called the “Named Plaintiff.” The Named Plaintiff seeks permission from the Court to permit other employees to join the case. If the Court permits other employees to join the case, the other employees are typically given around 45-60 days to join the case. This is called the “Notice Period.” Once the Notice Period closes, no further employees can join that specific case. However, this does not mean you lose your right to recover damages. It just means you will have to file your own lawsuit.

The FLSA is unlike other class action laws because it does not require employees to join the case and instead permits employees to file their own lawsuits. Under this scheme, you could have one class case against an employer as well as multiple single employee cases.

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One of the most asked questions our firm receives is what is the statute of limitations for overtime claims or how far back can an employee seek unpaid overtime? The answer is that depends on the case. Employees can automatically seek damages for the previous 2 years. However, in some cases, the FLSA allows employees to go back 3 years for unpaid overtime.

Two Year Period: All overtime cases allow an employee to seek unpaid wages for the previous 2 years. This means that from the date you file your overtime lawsuit, you can seek unpaid wage for the 2 years prior to the date of filing the lawsuit.

Three Year Period: The FLSA extends the statute of limitations from 2 years to 3 years for cases in which the employer’s violation is willful. A court will find an employer’s violation is willful if the employer knew or showed reckless disregard for whether its conduct was prohibited under the FLSA. Two specific examples include: