S1: The statements expressed in the following program are those of
S1: the Speaker. They do not necessarily represent the views and
S1: opinions of the sponsor, the hosts, and or OLAS media.
S2: OLAS media.
S1: This is Overdue Over time, presented by Sommers Schwartz. And
S1: now here's your host, Justin Isaac.
S2: Welcome to Overdue Over Time, a podcast for lawyers and
S2: employees interested in learning about lawsuits for unpaid overtime and
S2: other wage benefits. My name is Justin Isaac and I
S2: am your host today. I am an estate planning attorney
S2: based in San Diego, and I'm actually joined today by
S2: Jason Thompson of Sommers Schwartz. Jason, thank you very much
S2: for joining us.
S3: Great to be here, Justin. Looking forward to talking to
S3: you about off the clock work.
S2: As my and you know, speaking of off the clock,
S2: we're back in 2021. Forbes magazine did a report and
S2: they said that the average American worker worked an extra
S2: day in unpaid overtime each week. And they said that
S2: one of the most common ways that employers try and
S2: avoid paying these wages is off the clock work. So please,
S2: let's let's talk about off the clock work. What is it?
S2: How do we notice it? What are we looking for?
S3: Yeah. When I saw that statistic, even somebody like myself
S3: who specializes in this area of law and handles these cases,
S3: my jaw dropped. I mean, can you imagine the reaction
S3: if most people realized that they were working an extra
S3: day a week and not getting paid for it? It's
S3: it's I mean, it's it's really amazing. It was it
S3: was incredible study. So when when I think of off
S3: the clock work, I got to kind of put two
S3: hats on one more of a common sense way. What
S3: does it mean to most people? And then, of course,
S3: as a lawyer who specializes in these cases, I get
S3: deep into the elements of the case, but at its essence,
S3: off the clock work is just what it sounds like.
S3: You're performing work in services without getting paid for it.
S3: That's the off the clock piece of that of that phrase.
S3: You're working off the clock. You're working for free.
S2: So when you have an employer who's asking an employee
S2: to when it's not explicit, there's so many times where
S2: I'm sure there's employees who are working, where the employer
S2: doesn't say, I want you to work, but don't clock in.
S2: That's very rare, I imagine. But there's got to be
S2: other instances where this would be considered off the clock work,
S2: but it might not be so prevalent, I guess, or
S2: it might not be so easy to see. Is there
S2: any way to kind of look for something like that
S2: or what should we be looking for?
S3: You know, it's a great question. Let me start by
S3: saying you'd be surprised how many people are asked to
S3: work explicitly off the. Really? Yeah, absolutely. By their employer.
S3: And it's not it's not easy to look your boss,
S3: your manager or your employer in the eye and say, no,
S3: that's illegal. I'm not going to do it. When you're
S3: facing rent, like today's rent prices go up and all
S3: of the inflation that that's happening, it's a very difficult
S3: kind of trigger to pull. And so you find a
S3: lot of middle management or foremen, people who have production
S3: quotas hanging over them and looming over them, jam that
S3: pressure down on the workforce and tell them, listen, we've
S3: got to do a few extra things here today. I
S3: want you punched out or before we actually punch in,
S3: we're going to get everything set up. I'm getting a
S3: lot of heat from above and I need to get
S3: my numbers up. So we're going to do a few
S3: extra things here. And if you don't like it, take,
S3: you know, get a get a different job and or
S3: don't show up.
S2: So before we get into the actual elements of what
S2: off the clock work would be, because for anyone who,
S2: you know, doesn't have a legal background, there's usually when
S2: there's a violation of some kind of code, there are
S2: elements that you need to meet, and that's either established
S2: by the legislature or usually some kind of case law.
S2: So there's certain things where if an element isn't met,
S2: then it might not be considered a violation of whatever
S2: you know, we're talking about. But before we get into
S2: the elements of what off the clock work is, I
S2: do want to ask what if there is an employer
S2: who asks an employee to clock out, but says that
S2: they'll be compensated elsewhere? Or maybe they'll be looked at
S2: in favor with the upper management, or I'll buy you
S2: a burger or something like that. Is that still considered
S2: off the clock work or does it have to be
S2: strictly monetary compensation?
S3: Well, I've never seen in all my years a case
S3: where a employer took the position that we actually complied
S3: with the law. You got your benefit of the bargain
S3: because we got your cheeseburger or, you know, we bought lunch.
S3: You know, that's that's never come across my desk before.
S3: The law certainly isn't written that way. It all comes
S3: back to your hourly wage. Yeah, it is about the money.
S3: And if there's a if there's a agreement to provide
S3: an hour of labor for $15 an hour, then once
S3: that labor has been provided, that time has been provided,
S3: that hour has been incurred, that $15 is owed. If
S3: you want to buy me a cheeseburger on top of that,
S3: that's great. But you have to pay for the hour
S3: once once the work is done, the wages owed.
S2: And that makes sense. I was just thinking, you know,
S2: I'm sure there's some kind of employer out there who
S2: might have said, Oh, I paid you in other ways
S2: when you worked these, you know, X amount of hours.
S2: And I, you know, put you up for promotion. So
S2: I expect you to do these things off the clock.
S2: And and that again, goes back to that power imbalance where,
S2: you know, you the employee want something and they're willing
S2: to make these kind of sacrifices where the employer can
S2: take advantage, right?
S3: Yeah, exactly. I can't tell you how many clients I've represented. And,
S3: you know, they've come to me with a particular problem,
S3: a particular circumstance. We end up filing a lawsuit over it.
S3: But in the course of getting to know the client,
S3: getting to know their background, there's been many instances that
S3: led up to that. And it's exactly what you just
S3: talked about. It's those subtle requests, those innuendoes about promotion
S3: and whatnot. It's human nature and people react to that.
S3: And all my clients have to make that decision. Look,
S3: am I going to tip over the applecart? Am I
S3: going to risk angering, you know, my supervisor when I
S3: got a nice gig here, or am I just going
S3: to be quiet about it and and see what happens?
S3: It's it's it's never an easy choice for people who
S3: are living paycheck to paycheck and trying to make ends meet.
S2: Yeah. Yeah, that makes sense. So let's talk about the
S2: elements of a violation for off the clock work. What
S2: are we looking for? And does this vary the state
S2: by state or is this kind of a national standard?
S3: So most states have their own wage and hour laws.
S3: That's what this is called wage and hour law. But
S3: the federal law is pretty much applicable in all states.
S3: And any state that has its own statute essentially mirrors it.
S3: So for today's purposes, we're going to just talk as
S3: if there was there was one set of laws, okay,
S3: for off the clock work requires a couple of things.
S3: First of all, the activity that we're talking about actually
S3: has to be work. Second of all, your employer needs
S3: to know or should have known that the work was
S3: being performed. And then thirdly, the job classification needs to
S3: be covered by the law itself, by the Fair Labor
S3: Standards Act or the state wage and hour laws. And
S3: we could chat about each of those three elements. But
S3: those are those are those are kind of the general
S3: tests that anybody would have to go through in order
S3: to establish a claim for off the clock work.
S2: Okay. So let's start off with, is the activity actually work?
S2: Can you give an example of some situations where something
S2: might be considered work, something might not be considered work,
S2: like maybe planning a party for someone's birthday in the office,
S2: something like, Can you give a couple of examples?
S3: Yeah. And you just started to exactly zero in on
S3: what the law looks at. The law looks at something
S3: that's indispensable or intrinsic to the principal activities of the job.
S3: I know that's kind of a big definition or some
S3: some some large words there, but essentially what it comes
S3: down to is, was this activity part of your actual
S3: principal job duties? So if if you have a job
S3: and you're stocking shelves, planning the birthday party for one
S3: of your coworkers, that's not really part of your job.
S3: You're stacking the shelves. If it's unwrapping the shipment in
S3: the back room of the materials before you stocked the shelves,
S3: you can start to see how that stuff is. Principal
S3: activity that is intrinsic. If you can't actually complete the
S3: job function without the activity you're talking about, chances are
S3: that's actually work.
S2: Interesting. So I imagine there are scenarios where people are
S2: asked to do things that are outside the scope of
S2: their work and it does that factor in because, okay,
S2: so I'm I'm trying to think for people who who
S2: don't have that legal background, what kind of questions would
S2: be asked here? So your person who's a stock boy
S2: who is asked to do something for a birthday party
S2: set up for one of the other employees. And I
S2: imagine that if you were to talk to that person
S2: and say, you know, did you consider this work? Is
S2: this a subjective standard or objective standard when we're talking
S2: about what is or isn't considered work?
S3: It's an objective standard. That's that's okay. It has a
S3: third party, somebody who is looking at that job title,
S3: the job function and how it fits into the business.
S3: Would a reasonable person conclude that? Yes, that's and that's
S3: an intrinsic that's indispensable. The perform task has to be done.
S3: Every day is part of that job. That's that's what
S3: tests for work. So, yeah, it's an objective test, not
S3: a subjective test.
S2: Okay. And so if it's not something that's actually work,
S2: then kind of falls by the wayside pretty quick. Right?
S3: Right. So here's here's kind of a real world example
S3: from my personal life. When I was in in college,
S3: I worked at a furniture warehouse and we would load
S3: up trucks, you know, people who are moving. And one
S3: day the owner of the company gave me 20 bucks
S3: and said, Go get my car washed. Hmm. So I did.
S3: Of course. And, yeah, I came back and wondered whether
S3: I should give him his change back. But I did that, too. And, yeah,
S3: and I never got docked for that half hour. I
S3: was gone. I never punched out to go do that.
S3: You know, he's paying me. He just chose to have
S3: me wash his car rather than move furniture. But if
S3: I was trying to make a claim for that as
S3: being off the clock work, it wouldn't meet the test.
S3: You know, wash having the boss's car washed and taking
S3: it out and returning it from the car wash had
S3: nothing to do with my warehouse and furniture moving assignments. So,
S3: you know that that's an example that that just wouldn't
S3: meet the test. But notice how I said my employer
S3: did not ask me to punch out. He didn't give
S3: me the half hour. I got paid. So no harm,
S3: no foul.
S2: Well, I imagine there's a lot of people who are
S2: being asked to do things outside the scope of work
S2: that are not on their hourly time. BLOCK So if
S2: you're what about a in a situation where he asked
S2: you to have his car washed after you had just
S2: clocked out, that's not considered a part of your normal
S2: scope of work. However, you're still being asked to do
S2: something that you wouldn't normally do. Could that could be
S2: considered some other violation or something like that?
S3: Unfortunately, no, that's not fall, in my opinion, under the
S3: definition of work. So, you know, in your scenario, you're
S3: dealing with a lot of the same elements we've been
S3: talking about here so far. Power imbalance, pressure from above,
S3: implicit promises of of reward. But under the law, you know,
S3: as we've talked about, that first element of an off
S3: the clock work claim is it has to be indispensable
S3: or an intrinsic element to the principal activities of the job. And.
S3: Going to get the car wash for the boss really
S3: has nothing to do with moving furniture and loading trucks.
S3: Of course, it has everything to do with me getting
S3: scheduled to work next week. It has everything to do.
S3: Keeping a good relationship at the at the warehouse. But
S3: it would not a basis for a wage and hour lawsuit.
S2: And from a like, you know, I'm not trying to
S2: get too far sidetracked here, but from a liability standpoint,
S2: legally speaking, it could mean a lot for that business
S2: owner if you were to get into a car accident
S2: with his car, like if it's considered a part of like,
S2: you know, But anyways, I don't want to get too,
S2: too far into something else because I know we want
S2: to talk about wage and hour.
S3: Yeah, trusting me to drive your car when I was
S3: in college is certainly a whole nother podcast.
S2: And a whole nother host of liability there. Okay, So
S2: let's talk about I think the second element was did
S2: the employer know or should have known the work was
S2: being performed? Is that right?
S3: Exactly. So once we've crossed the first threshold and it's
S3: actually work that you're asking, you're being asked to do
S3: either early or late or on your day off. Then
S3: the next element is, did your employer actually know? So,
S3: you know, let's talk about some of those scenarios where
S3: the middle management or the foreman or the office manager,
S3: you know, with a wink and a nod or explicitly
S3: says to you, come on in on Saturday, or come on,
S3: stay late tomorrow. We've got a few extra things to do.
S3: That's not the employer we're talking about in this element
S3: of the test. Who we're talking about is actually the
S3: corporation or the company or the owner of the business.
S3: That's the employer that we're talking about. And it is
S3: a defense. If they don't know that the work is
S3: being performed now, it's not quite as cut and dry
S3: as I just made it sound, because there's also the
S3: second criteria knew or should have known. So let me
S3: give you a great example of the should have known. Okay.
S3: So so let's say, for example, you're a call center worker,
S3: and in a call center you have to have a computer.
S3: It has to be turned on. You have to have
S3: your headset that has to be booted up. There's usually
S3: three or four other programs that you have to have
S3: loaded on your laptop or your or your computer and opened. Oftentimes,
S3: there's an early set of emails from your manager, things
S3: that are going on today. You have to read those
S3: and then your shift starts at 7 a.m.. Well, in
S3: call centers, it's a very automated, very high tech business
S3: environment and those calls are routed to you starting at 7:00,
S3: not nine and not seven or one. They start coming in.
S3: And if you were working at a call center and
S3: your shift started at 7:00, that first call comes in
S3: at 7:00 or 701. You have to be ready to
S3: take that call. Everything I've just told you, Justin, is
S3: for that industry. Anybody running a call center over the
S3: last ten years would tell you, Yeah, that's exactly how
S3: it works now. How in the world are you supposed
S3: to be ready to take a call if you arrive
S3: at your desk and sit down at 659 when you've
S3: got five, seven, nine, maybe even 12 minutes of elementary work,
S3: preliminary activity that needs to be done so that at
S3: 7:00 you can take that first call. The answer is
S3: it's impossible.
S2: Yeah. There's a lot of prep, it sounds like.
S3: Where the employer should have known that their workers at
S3: a 7:00 shift had to be paid an additional amount
S3: of time to set up their computers, get their headsets working,
S3: open up the apps and read any, you know, early
S3: emails from from the department head.
S2: Yeah. So it's the two elements of that the know
S2: or should have known. I mean no is just pretty straightforward.
S2: It's explicit. It's just knowledge that this person is working
S2: and they're not clocked in and the should've known definitely
S2: makes sense to because if you have these requirements for
S2: all this the setup, you can't claim that they have
S2: to start right at seven and not pay them for
S2: that prep that they were doing before seven. So you
S2: should have known that since you made these requirements for
S2: them to that they needed to take this extra time
S2: and therefore should be paid for that, correct?
S3: That's exactly right.
S2: So that all makes sense to and that the with
S2: regards to the know or should have known. I did
S2: want to ask, though, because you mentioned that lower level management,
S2: mid management might not be able to we might not
S2: be able to hold accountable the actual corporation, the owner,
S2: because they didn't know what was going on and we
S2: can't really hold them legally liable. Is that correct?
S3: Well, you know, like we talked about it, it depends
S3: on what the activity is. And that's why these elements
S3: all kind of dovetailed together. And they fit very nicely.
S3: Because if if the activity is an indispensable and important
S3: part of the of the job duty. Well, then the
S3: employer should know what needs to be done. The call
S3: center example we just gave is a perfect example. Here's
S3: another one working in a restaurant. How many times does
S3: a waiter or a waitress or a hostess come in
S3: early to fold napkins, set the table, put the flowers
S3: in the base, make sure the silverware spotless, the wineglasses spotless.
S3: That's done all the time by restaurant workers again. I
S3: have personal experience that you may have experience with that.
S3: So the owner of the restaurant can't say, My gosh,
S3: I didn't know that was happening. I feel awful, but
S3: I'm sorry. I just didn't know that was happening. Well,
S3: that's not fair. It's not reasonable. It's not going to
S3: that's not going to hold water when you open your
S3: restaurant at noon for lunch. Guess what? That table didn't
S3: set itself magically. You know, your manager was having the
S3: waitstaff and the hostess come in 10 minutes, early 15
S3: minutes early to fold the napkins and do all that work.
S3: So the elements really are dovetailing together as we move
S3: through this conversation. On the other hand, if we go
S3: back to the carwash example and my manager had to
S3: go wash the car at 1130 and then be ready
S3: to go at noon. Well, the employer could say, I'm sorry,
S3: I feel bad about that, too. But I had no
S3: idea that the manager was asking the waitstaff to wash
S3: and wax this car.
S2: Yeah. So is there is there recourse where say you
S2: have a. I do have experience as a manager of
S2: a restaurant and an employee of a restaurant for many
S2: years before I went to law school. And I'm thinking
S2: of maybe someone who was considered a key holder, which
S2: is not a full time manager, but someone who just
S2: helps out as a manager and say they knew that
S2: someone was working or doing things off the clock. Are
S2: we is the employers still going to be held liable
S2: in that situation? And it sounds like maybe not.
S3: Well, I don't want to get too far. Stray from from,
S3: you know, the laws that we're talking about here. But
S3: there are other claims that lawyers such as myself and
S3: at my firm bring that would be designed to scoop
S3: that stuff up. Breach of contract, unjust enrichment. Those are
S3: other claims under the law. That would probably be a
S3: better fit and would be less susceptible to a defense
S3: by the employer lawyer under the technical requirements of wage
S3: and hour laws.
S2: Yeah. So it's still it's still some kind of violation
S2: or still some kind of there is recourse or compensation available,
S2: but it might not necessarily fit perfectly in the box
S2: for the wage and hour law. So if you're listening
S2: to something like this and you feel like you're your claim,
S2: you have some kind of claim to and you think, well,
S2: I you know, it might not be explicit or it
S2: might not hit this particular element. Well, there's obviously a
S2: lot of different things that an attorney such as Jason
S2: would be able to help you with in figuring out
S2: where there is compensation for a claim that you might have,
S2: whether it be through wage and hour or some other
S2: kind of unknown thing. Like a lot of people don't
S2: know what unjust enrichment is. And, you know, I guess
S2: I can try and give like a pretty generic explanation.
S2: And Jason, feel free to chime in. So I would
S2: say unjust enrichment is where someone is getting a benefit
S2: from something you're doing without either like a contract or,
S2: you know, and it doesn't necessarily have to be monetary,
S2: in my knowledge. Unjust enrichment is just someone who's getting
S2: a benefit from something that you did that probably was
S2: not intended to be so. Would you agree with something
S2: like that?
S3: Right. I think that's a that's a wonderful definition. And
S3: the unfair thread is is, you know, woven through that
S3: as well. And so in our little example, yeah, you know,
S3: wash again, it's it's really unfair to quote unquote ask
S3: the hostess or the waiter to go wash the car.
S3: Even given the situation, the only reason they're saying yes
S3: is because they they know you are their manager and
S3: they need the job. And there's an implicit, you know,
S3: threat that if you're not going to help me out
S3: with my personal life, I'm going to make yours miserable.
S3: So that's the other thread of it on, you know,
S3: the thread, I should say, of an unjust enrichment claim.
S3: And so something like that would certainly be be something
S3: we would look at for our client who had that
S3: situation going on.
S2: I do want to ask you, I want to go
S2: over that last element in just one second. But I
S2: do after this, I want to talk about like compensation.
S2: How is compensation calculated? And, you know, is there double
S2: damages for really wrongful acts by the employer? But let's
S2: talk about what workers are actually covered by these wage laws,
S2: are they? I know you mentioned this in the top
S2: of or the beginning of the show, but there's got
S2: to be some people who are excluded, unfortunately, from, you know,
S2: unfair practices like off the clock, you know, violations.
S3: Right. So like every law, there's exceptions. So if you
S3: think about it, why else would you penalize really an
S3: employer for having work force work over 40 hours a week? Right.
S3: Over 40 hours a week means you get time and
S3: a half in America. Well, that's the law we're talking about.
S3: And so what Congress wanted to do was say, stop
S3: overworking one person and instead hire the second person. We're
S3: in a depression. Unemployment's through the roof. This country needs workers.
S3: Everybody needs a job. It has tremendous benefits. It creates
S3: tax dollars, stable communities, etc., etc.. So, you know, what
S3: the law was designed to do was to get people
S3: back to work. And the way it chose to do
S3: it was set a number at 40. And so if
S3: you are working in a in a hourly position. And
S3: you're working more than 40 hours a week. The law
S3: kicks in for overtime if that same job is is
S3: at issue and you're and you're not being paid minimum wage,
S3: then that also is protected by the statute. Primarily, what
S3: our lawsuits are for for overtime and it's for hourly workers. Now,
S3: having said that, there are literally hundreds of exemptions and
S3: there's sometimes common sense to them. One of the early
S3: ones I found somewhat intriguing was the carnival worker exemption.
S3: So carnival workers are clearly hourly workers and they travel
S3: all over the country and they go from county to
S3: county fair, City fair. And for whatever reason, their lobbyists
S3: were successful in getting an exemption from them. And, you know,
S3: the argument is woe is me. We couldn't stay in
S3: business if we had to pay for all this downtime.
S3: Mm hmm. I don't know. Maybe it makes sense. You know,
S3: I would imagine there is a lot of downtime. But.
S3: But be that as it may, that's. That's an exemption.
S3: Flight attendants, similar situation. So there's a lot of different
S3: jobs and and even hourly jobs that frankly, are not
S3: covered by the wage and hour law. And you would
S3: just have to talk to a specialist such as myself
S3: to find out if your particular job title and position
S3: was exempt or not. The other big exemption and I
S3: shouldn't say exemption because exemption really is for hourly workers,
S3: but but it's the phrase we use is high compensated
S3: individuals like executives, people who are actually running the business
S3: or people who are working in a administrative capacity. Getting
S3: back to my example, at the furniture warehouse, there was
S3: a whole front office that handled the invoicing and the paperwork.
S3: They had nothing to do with the furniture. They didn't
S3: move furniture, they didn't run trucks. They didn't do anything
S3: that was part of that core business. But of course,
S3: you had to have them. That's an administrative exemption. So
S3: we could go on and maybe someday we'll do another
S3: podcast about all the exemptions. I'm not sure it's all
S3: that terribly interesting. But, you know, back to your your
S3: real question. If you just think about it in terms
S3: of hourly workers and not not in a supervisory capacity
S3: or not as an executive, you pretty much have the
S3: working definition of who's covered in anybody who's in that
S3: type of a position that is being asked to work
S3: off the clock should seriously consider coming forward and taking action.
S3: You know, part of part of what our firm specializes
S3: in is group cases. So, you know, that's that's a
S3: whole other podcast. We probably will we will want to
S3: talk about as to how those group cases or class
S3: actions get put together. And that's where you can really,
S3: really have some fun, because businesses at that point have
S3: a lot of money at stake. It's an entire classification
S3: of workers or a whole state of workers. And as
S3: we all know, the way the world works, you know,
S3: the more at stake, the more attention you're going to get,
S3: the bigger club you kind of wield to solve these problems.
S2: Yeah, it's very interesting, too, because there's so many nuances
S2: to this field of law. And, you know, as I mentioned,
S2: the beginning of the show, I'm an estate planning attorney.
S2: I focus on estate planning. And I, I was looking
S2: at some of the material when it comes to off
S2: the clock work. And I was like, this is fascinating
S2: because I'm sure there's an exemption to an exemption to
S2: an exemption. And you can get so far into the
S2: weeds for certain things. And I guess like so you're
S2: saying that general hourly employees, non executives, non, you know,
S2: managerial were the ones who are who this law really
S2: applies to. What about salaried employees that would be exempt
S2: from this as well.
S3: Right. So there's there's you know I don't know about
S3: you but I was kind of always brought up to
S3: believe that if you were on salary, you didn't get
S3: overtime if you were hourly and did get overtime. It's
S3: a little bit more complicated than that because there's a
S3: there's a job duties test. And you have to you
S3: have to get into some of the weeds in terms
S3: of the job duties. Mm hmm. But basically, you know,
S3: for for for most instances, hourly workers are who are
S3: or always kind of the target for this for this
S3: law and the coverage of its benefits.
S2: And that makes sense. And so you talked about this
S2: is obviously something you need to speak to a specialist about.
S2: And these are common at your firm at some resorts,
S2: or is it, you know, 20% of what you do pretty,
S2: pretty often?
S3: No, the department that I co-chair and manage works exclusively
S3: on these cases. We file about 50 to 60 cases
S3: a year. Our cases are in almost every state. We
S3: still chuckle about wanting to get Hawaii and fight for
S3: that assignment. But. But we're all over the country. It
S3: is a specialization. As I said, there's there's a lot
S3: of areas within the law and you've alluded to some
S3: of the specialization, but what we do are handle the
S3: class actions and that that is a whole nother level
S3: of specialization. There's a whole other test and a set
S3: of questions that the lawyer has to, you know, be
S3: successful in. In addition to the things you and I
S3: have talked about here today. In order for a case
S3: to be certified as either a class action or a
S3: collective action. And so we have. About 2 to 3
S3: administrative staff or what you call paralegal positions that are
S3: working on these cases. There are four senior partners such
S3: as myself, who specialize in these cases and would and
S3: would handle the primary court hearings and any trials. And
S3: then we have three or four associate attorneys, younger attorneys
S3: that are assisting us with both all aspects of the
S3: of the case and the preparation. And then lastly, but
S3: certainly not least, is our intake specialists. So we have
S3: anywhere varies from year to year, but 3 to 5000 leads, calls,
S3: client while they come in a year with potential cases.
S3: And that's a full time position for our intake specialist.
S3: Absolutely manages the software for that and and is is
S3: a pretty darn good resource in terms of the law
S3: and what type of cases there are. And she can
S3: decide right away whether or not that needs to be
S3: escalated to one of the attorneys or whether it's the
S3: what we call a turn back. It just doesn't fit
S3: the law.
S2: Yeah, I think that a lot of people don't really
S2: think about that aspect. I do get a lot of
S2: calls at my firm for other things other than estate planning.
S2: And it's it's really a challenge sometimes to train people
S2: to know what is the appropriate response, whether it's something
S2: that we can help them with or not. And that
S2: requires a lot of hands on training. And with with
S2: this field of law, I imagine this intake specialist, you know,
S2: whether or not she has a legal background, I guess,
S2: you know, it would be it would be helpful if
S2: she did. But if she just knows what you're looking for,
S2: if you have those kind of details, that would be
S2: so helpful because as an attorney, we don't want to
S2: take on something or waste time, the client's time, our time.
S2: We want to make sure we're being efficient. And and
S2: I imagine that it's really difficult to find if you're
S2: getting that many inquiries every year. You really need to
S2: have someone who's going to be able to weed out
S2: the ones that just don't apply or something that you
S2: can't help with.
S3: Yeah, it it's a daunting task. She'll tell you. I mean,
S3: it's it's it's a very, very broad set of questions
S3: and fact patterns, and she does a lot more than
S3: just filter the cases to. I mean, people ask questions
S3: on on hot button issues, you know, Can I get fired? Yes. Yeah. What?
S3: You know, what's going to happen to me if we
S3: don't win? Will I get blackballed in my industry over
S3: this lawsuit even if we do win? You know, I'm
S3: looking forward to getting back together with you and talking
S3: about these and other podcasts, because there's just a lot
S3: of a lot of other topics. You know, how do
S3: I pay you? Well, you know, you don't that's one
S3: of the features of of the law and of the
S3: of the, you know, the plaintiff's lawyer. We only get
S3: paid if we win. The client never pays us. It's
S3: a portion of their wages, you know, a portion of
S3: the settlement that that we would apply for as our fee.
S3: And here's a wonderful part about the law. There is
S3: an attorney fee shifting provision in the statute. So what
S3: does that mean? That means the defendant, the employer, if
S3: they lose, they've got to pay your legal fees. Oh, so,
S3: you know, it's a it's a fantastic statute. Our intake
S3: specialist understands all the key points, and she will field
S3: questions from from a wide array of perspectives. Some of
S3: the stuff we talked about and a whole lot more.
S2: I would I would love to hear her process because
S2: I'm pretty fascinated by that. And in just this field
S2: of law in general, I kind of touched on this
S2: a second ago and maybe this will kind of I'll
S2: weave two questions together. What kind of damages. I know
S2: you mentioned, obviously compensation. And then, you know, the attorneys
S2: get paid through that. But are there situations where you'll
S2: have double or treble damages for a particularly egregious act?
S2: Do you have any kind of story that we can
S2: that you can tell? Redacted information, of course, to make
S2: sure it's kept private. But I'm sure a lot of
S2: people would like to hear some kind of interesting story
S2: where someone was really hit hard and you had a
S2: nice success story for your for your clients.
S3: Well, there's so many. And, you know, I hate to
S3: sound cliche, but I've been practicing law for over 30 years,
S3: you know, and I've been in this for the last
S3: 17 or 18 years. And, you know, with 3000 leads
S3: coming in a year, the the number of cases starting
S3: to mount. So I'll say I'll tell you a couple
S3: of things. The statute, the wage and hour law we've
S3: been talking about today, the Fair Labor Standards Act or
S3: the FLSA, not only awards you attorney fees if you win,
S3: but in addition, if there's a lack of good faith
S3: by the defendant, you know, by the employer, then the
S3: wages are liquidated, which is just a fancy word for doubling. So,
S3: you know, if you're earning 13, 14 bucks an hour
S3: and you've been having to work, you know, even 5
S3: minutes off the clock, you know, every minute is compensable.
S3: Every minute you work is compensable in this world. And
S3: it adds up tremendously quickly. If you if you have
S3: 5 minutes of off the clock, work a day and
S3: you're working overtime 60 days a week and you know,
S3: you get up to four weeks of vacation or two
S3: weeks of vacation, it doesn't take long before you start
S3: talking about thousands of dollars. Mm hmm. And the law
S3: was designed, again, to really force employers to comply. It's
S3: a very labor protective statute. In most instances, the employee
S3: wins the benefit of the doubt. The old baseball analogy,
S3: the tie goes to the runner, if you will. You know,
S3: the worker is the runner in this scenario. And so
S3: you get your attorney fees paid for and you get
S3: double the damages. So it does have some fantastic protections.
S3: The reason I don't have a really good story for
S3: you in terms of a particular case where, you know,
S3: we could say we slayed the dragon or particularly effective
S3: in getting these liquidated damages is because it's a fairly
S3: easy task. You know, Yeah, the good faith violation or
S3: lack of good faith. And I don't know. I didn't
S3: know Gee was confusing. Gosh, my lawyer got it wrong.
S3: None of that works. And so basically, in every case
S3: and in every settlement, liquidated damages and attorney's fees are
S3: on the table. And part of the negotiation, you know,
S3: in addition to the base wage that wasn't paid.
S2: So one last question before we wrap up. What percentage
S2: would you say of your cases actually go to trial
S2: and what are what percentage are just settled before you
S2: even get close to trial?
S3: A. A. A review of our case filings. Know we're
S3: fairly selective in the cases that we take, but a
S3: review of our case filings will show you that less
S3: than less than 5% ever go to trial. We're going
S3: to do another podcast with you about mediation, because that's
S3: really today's substitution for trial. That's that's how most of
S3: these cases get resolved is with a mediation. And a
S3: mediation is where both sides have had a year or
S3: so to investigate the case, interview witnesses, and maybe have
S3: some preliminary legal disputes with the judge once that's over.
S3: Rather than spend a whole lot of time getting ready
S3: for trial. In today's world, in today's courts across America,
S3: mediation has really replaced trial and both sides will agree
S3: upon a third party. It's usually a retired judge or
S3: a lawyer who's got a lot of experience and later
S3: in their practice decides they want to be a mediator.
S3: They are. They are the third party that tries to
S3: get the parties to settle their case. They don't have
S3: any authority. They certainly are in charge of the case.
S3: It's all secretive from the judge, but they're very effective.
S3: They're good communicators. They're they're experts in many aspects of
S3: of courtroom and litigation and perhaps even the law that's
S3: at issue. And most of our cases, we work up
S3: for a year to to that's how long it takes.
S3: And they end up in mediation. And our clients are
S3: active in that process. Of our clients participate in the
S3: mediation and they are they are vitally important to making
S3: that final decision as to, okay, is this a good
S3: settlement or is this not a good settlement? Is this enough?
S3: You know, yeah, really being honest with us. And a
S3: lot of that inside information that only a client can
S3: bring to that process.
S2: Yeah, I know. I have so many different questions, but
S2: I know we need to wrap up here. We're going
S2: to definitely have to do this again because I mediation, compensation,
S2: all the things that are involved in this. I'm just
S2: super curious as you know, an individual and as an
S2: attorney how it all works. So we definitely need to
S2: have you back on or do a new another podcast
S2: pretty soon. So Jason Thompson from Summer Schwartz, thank you
S2: so much for all the great information. And it was
S2: it was really there was a lot of good things
S2: to think about.
S3: Thank you, Justin. Happy to be here.
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S1: PC dot com. Overdue Overtime is produced at the IVC Media
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