WEBVTT - Can I Sue for Working Off the Clock? | Jason Thompson 0:00:00.330 --> 0:00:02.909 The statements expressed in the following program are those of 0:00:02.910 --> 0:00:05.340 the Speaker. They do not necessarily represent the views and 0:00:05.340 --> 0:00:08.760 opinions of the sponsor, the hosts, and or OLAS media. 0:00:10.350 --> 0:00:11.299 OLAS media. 0:00:12.980 --> 0:00:17.130 This is Overdue Over time, presented by Sommers Schwartz. And 0:00:17.130 --> 0:00:19.560 now here's your host, Justin Isaac. 0:00:21.540 --> 0:00:24.750 Welcome to Overdue Over Time, a podcast for lawyers and 0:00:24.750 --> 0:00:28.230 employees interested in learning about lawsuits for unpaid overtime and 0:00:28.230 --> 0:00:31.140 other wage benefits. My name is Justin Isaac and I 0:00:31.140 --> 0:00:33.750 am your host today. I am an estate planning attorney 0:00:33.750 --> 0:00:36.450 based in San Diego, and I'm actually joined today by 0:00:36.450 --> 0:00:39.750 Jason Thompson of Sommers Schwartz. Jason, thank you very much 0:00:39.750 --> 0:00:40.500 for joining us. 0:00:41.520 --> 0:00:43.680 Great to be here, Justin. Looking forward to talking to 0:00:43.680 --> 0:00:45.060 you about off the clock work. 0:00:45.600 --> 0:00:48.090 As my and you know, speaking of off the clock, 0:00:48.090 --> 0:00:51.809 we're back in 2021. Forbes magazine did a report and 0:00:51.810 --> 0:00:54.900 they said that the average American worker worked an extra 0:00:54.900 --> 0:00:58.320 day in unpaid overtime each week. And they said that 0:00:58.320 --> 0:01:01.050 one of the most common ways that employers try and 0:01:01.050 --> 0:01:05.250 avoid paying these wages is off the clock work. So please, 0:01:05.250 --> 0:01:07.560 let's let's talk about off the clock work. What is it? 0:01:07.569 --> 0:01:10.110 How do we notice it? What are we looking for? 0:01:11.350 --> 0:01:16.270 Yeah. When I saw that statistic, even somebody like myself 0:01:16.270 --> 0:01:20.080 who specializes in this area of law and handles these cases, 0:01:20.319 --> 0:01:23.350 my jaw dropped. I mean, can you imagine the reaction 0:01:23.350 --> 0:01:26.140 if most people realized that they were working an extra 0:01:26.140 --> 0:01:28.480 day a week and not getting paid for it? It's 0:01:28.480 --> 0:01:31.620 it's I mean, it's it's really amazing. It was it 0:01:31.630 --> 0:01:36.000 was incredible study. So when when I think of off 0:01:36.000 --> 0:01:37.920 the clock work, I got to kind of put two 0:01:37.920 --> 0:01:40.500 hats on one more of a common sense way. What 0:01:40.500 --> 0:01:42.470 does it mean to most people? And then, of course, 0:01:42.480 --> 0:01:46.950 as a lawyer who specializes in these cases, I get 0:01:46.950 --> 0:01:49.800 deep into the elements of the case, but at its essence, 0:01:49.800 --> 0:01:52.050 off the clock work is just what it sounds like. 0:01:52.470 --> 0:01:56.220 You're performing work in services without getting paid for it. 0:01:56.220 --> 0:01:59.070 That's the off the clock piece of that of that phrase. 0:01:59.080 --> 0:02:02.370 You're working off the clock. You're working for free. 0:02:03.390 --> 0:02:06.510 So when you have an employer who's asking an employee 0:02:06.510 --> 0:02:10.470 to when it's not explicit, there's so many times where 0:02:10.470 --> 0:02:13.889 I'm sure there's employees who are working, where the employer 0:02:13.889 --> 0:02:16.830 doesn't say, I want you to work, but don't clock in. 0:02:16.860 --> 0:02:19.860 That's very rare, I imagine. But there's got to be 0:02:19.860 --> 0:02:23.790 other instances where this would be considered off the clock work, 0:02:24.389 --> 0:02:28.260 but it might not be so prevalent, I guess, or 0:02:28.260 --> 0:02:31.110 it might not be so easy to see. Is there 0:02:31.110 --> 0:02:32.880 any way to kind of look for something like that 0:02:32.880 --> 0:02:34.200 or what should we be looking for? 0:02:35.660 --> 0:02:39.950 You know, it's a great question. Let me start by 0:02:39.950 --> 0:02:43.160 saying you'd be surprised how many people are asked to 0:02:43.160 --> 0:02:48.109 work explicitly off the. Really? Yeah, absolutely. By their employer. 0:02:48.590 --> 0:02:53.870 And it's not it's not easy to look your boss, 0:02:54.260 --> 0:02:57.620 your manager or your employer in the eye and say, no, 0:02:57.830 --> 0:03:01.850 that's illegal. I'm not going to do it. When you're 0:03:02.300 --> 0:03:06.110 facing rent, like today's rent prices go up and all 0:03:06.110 --> 0:03:10.790 of the inflation that that's happening, it's a very difficult 0:03:11.360 --> 0:03:13.669 kind of trigger to pull. And so you find a 0:03:13.669 --> 0:03:19.910 lot of middle management or foremen, people who have production 0:03:19.910 --> 0:03:23.690 quotas hanging over them and looming over them, jam that 0:03:23.690 --> 0:03:27.290 pressure down on the workforce and tell them, listen, we've 0:03:27.290 --> 0:03:29.540 got to do a few extra things here today. I 0:03:29.540 --> 0:03:33.380 want you punched out or before we actually punch in, 0:03:33.500 --> 0:03:35.330 we're going to get everything set up. I'm getting a 0:03:35.330 --> 0:03:37.370 lot of heat from above and I need to get 0:03:37.370 --> 0:03:39.110 my numbers up. So we're going to do a few 0:03:39.110 --> 0:03:42.290 extra things here. And if you don't like it, take, 0:03:42.560 --> 0:03:44.960 you know, get a get a different job and or 0:03:44.960 --> 0:03:45.770 don't show up. 0:03:47.070 --> 0:03:50.700 So before we get into the actual elements of what 0:03:50.700 --> 0:03:53.760 off the clock work would be, because for anyone who, 0:03:53.790 --> 0:03:56.850 you know, doesn't have a legal background, there's usually when 0:03:56.850 --> 0:03:58.860 there's a violation of some kind of code, there are 0:03:58.860 --> 0:04:01.920 elements that you need to meet, and that's either established 0:04:01.920 --> 0:04:05.580 by the legislature or usually some kind of case law. 0:04:05.820 --> 0:04:08.820 So there's certain things where if an element isn't met, 0:04:08.820 --> 0:04:12.240 then it might not be considered a violation of whatever 0:04:12.240 --> 0:04:14.640 you know, we're talking about. But before we get into 0:04:14.640 --> 0:04:17.370 the elements of what off the clock work is, I 0:04:17.370 --> 0:04:19.800 do want to ask what if there is an employer 0:04:19.800 --> 0:04:24.419 who asks an employee to clock out, but says that 0:04:24.420 --> 0:04:28.770 they'll be compensated elsewhere? Or maybe they'll be looked at 0:04:28.770 --> 0:04:32.820 in favor with the upper management, or I'll buy you 0:04:32.820 --> 0:04:34.800 a burger or something like that. Is that still considered 0:04:34.800 --> 0:04:36.690 off the clock work or does it have to be 0:04:36.690 --> 0:04:39.270 strictly monetary compensation? 0:04:41.950 --> 0:04:45.460 Well, I've never seen in all my years a case 0:04:45.460 --> 0:04:50.410 where a employer took the position that we actually complied 0:04:50.410 --> 0:04:54.400 with the law. You got your benefit of the bargain 0:04:54.400 --> 0:04:57.760 because we got your cheeseburger or, you know, we bought lunch. 0:04:58.000 --> 0:05:02.230 You know, that's that's never come across my desk before. 0:05:02.620 --> 0:05:05.799 The law certainly isn't written that way. It all comes 0:05:05.800 --> 0:05:08.890 back to your hourly wage. Yeah, it is about the money. 0:05:08.890 --> 0:05:12.010 And if there's a if there's a agreement to provide 0:05:12.010 --> 0:05:15.880 an hour of labor for $15 an hour, then once 0:05:15.880 --> 0:05:18.940 that labor has been provided, that time has been provided, 0:05:18.940 --> 0:05:23.110 that hour has been incurred, that $15 is owed. If 0:05:23.110 --> 0:05:25.230 you want to buy me a cheeseburger on top of that, 0:05:25.240 --> 0:05:28.560 that's great. But you have to pay for the hour 0:05:28.570 --> 0:05:31.060 once once the work is done, the wages owed. 0:05:32.520 --> 0:05:35.580 And that makes sense. I was just thinking, you know, 0:05:35.580 --> 0:05:38.970 I'm sure there's some kind of employer out there who 0:05:38.970 --> 0:05:41.760 might have said, Oh, I paid you in other ways 0:05:41.760 --> 0:05:45.029 when you worked these, you know, X amount of hours. 0:05:45.029 --> 0:05:47.820 And I, you know, put you up for promotion. So 0:05:47.820 --> 0:05:50.520 I expect you to do these things off the clock. 0:05:50.520 --> 0:05:53.580 And and that again, goes back to that power imbalance where, 0:05:53.910 --> 0:05:59.190 you know, you the employee want something and they're willing 0:05:59.190 --> 0:06:01.589 to make these kind of sacrifices where the employer can 0:06:01.589 --> 0:06:02.730 take advantage, right? 0:06:03.360 --> 0:06:07.659 Yeah, exactly. I can't tell you how many clients I've represented. And, 0:06:07.660 --> 0:06:10.710 you know, they've come to me with a particular problem, 0:06:10.710 --> 0:06:14.070 a particular circumstance. We end up filing a lawsuit over it. 0:06:14.430 --> 0:06:16.230 But in the course of getting to know the client, 0:06:16.230 --> 0:06:20.160 getting to know their background, there's been many instances that 0:06:20.160 --> 0:06:23.250 led up to that. And it's exactly what you just 0:06:23.250 --> 0:06:28.469 talked about. It's those subtle requests, those innuendoes about promotion 0:06:28.480 --> 0:06:31.770 and whatnot. It's human nature and people react to that. 0:06:31.920 --> 0:06:35.550 And all my clients have to make that decision. Look, 0:06:35.550 --> 0:06:37.800 am I going to tip over the applecart? Am I 0:06:37.800 --> 0:06:41.940 going to risk angering, you know, my supervisor when I 0:06:41.940 --> 0:06:44.729 got a nice gig here, or am I just going 0:06:44.730 --> 0:06:48.210 to be quiet about it and and see what happens? 0:06:48.810 --> 0:06:51.690 It's it's it's never an easy choice for people who 0:06:51.690 --> 0:06:55.770 are living paycheck to paycheck and trying to make ends meet. 0:06:56.370 --> 0:06:59.219 Yeah. Yeah, that makes sense. So let's talk about the 0:06:59.220 --> 0:07:03.799 elements of a violation for off the clock work. What 0:07:03.810 --> 0:07:06.779 are we looking for? And does this vary the state 0:07:06.779 --> 0:07:09.300 by state or is this kind of a national standard? 0:07:10.530 --> 0:07:13.640 So most states have their own wage and hour laws. 0:07:13.650 --> 0:07:16.380 That's what this is called wage and hour law. But 0:07:16.380 --> 0:07:21.210 the federal law is pretty much applicable in all states. 0:07:21.510 --> 0:07:26.550 And any state that has its own statute essentially mirrors it. 0:07:26.550 --> 0:07:28.739 So for today's purposes, we're going to just talk as 0:07:28.740 --> 0:07:32.180 if there was there was one set of laws, okay, 0:07:32.500 --> 0:07:35.400 for off the clock work requires a couple of things. 0:07:35.400 --> 0:07:38.730 First of all, the activity that we're talking about actually 0:07:38.730 --> 0:07:42.660 has to be work. Second of all, your employer needs 0:07:42.660 --> 0:07:45.120 to know or should have known that the work was 0:07:45.120 --> 0:07:50.190 being performed. And then thirdly, the job classification needs to 0:07:50.190 --> 0:07:53.670 be covered by the law itself, by the Fair Labor 0:07:53.670 --> 0:07:57.030 Standards Act or the state wage and hour laws. And 0:07:57.030 --> 0:07:59.190 we could chat about each of those three elements. But 0:07:59.190 --> 0:08:02.100 those are those are those are kind of the general 0:08:02.130 --> 0:08:05.280 tests that anybody would have to go through in order 0:08:05.280 --> 0:08:07.770 to establish a claim for off the clock work. 0:08:08.430 --> 0:08:11.670 Okay. So let's start off with, is the activity actually work? 0:08:11.670 --> 0:08:14.940 Can you give an example of some situations where something 0:08:14.940 --> 0:08:18.750 might be considered work, something might not be considered work, 0:08:18.750 --> 0:08:22.980 like maybe planning a party for someone's birthday in the office, 0:08:23.640 --> 0:08:25.590 something like, Can you give a couple of examples? 0:08:26.340 --> 0:08:29.340 Yeah. And you just started to exactly zero in on 0:08:29.340 --> 0:08:32.280 what the law looks at. The law looks at something 0:08:32.280 --> 0:08:37.680 that's indispensable or intrinsic to the principal activities of the job. 0:08:38.070 --> 0:08:40.590 I know that's kind of a big definition or some 0:08:40.590 --> 0:08:43.980 some some large words there, but essentially what it comes 0:08:43.980 --> 0:08:48.600 down to is, was this activity part of your actual 0:08:48.600 --> 0:08:53.220 principal job duties? So if if you have a job 0:08:53.220 --> 0:08:57.390 and you're stocking shelves, planning the birthday party for one 0:08:57.390 --> 0:09:00.480 of your coworkers, that's not really part of your job. 0:09:01.020 --> 0:09:04.470 You're stacking the shelves. If it's unwrapping the shipment in 0:09:04.470 --> 0:09:07.709 the back room of the materials before you stocked the shelves, 0:09:08.340 --> 0:09:10.770 you can start to see how that stuff is. Principal 0:09:10.770 --> 0:09:15.510 activity that is intrinsic. If you can't actually complete the 0:09:15.510 --> 0:09:20.070 job function without the activity you're talking about, chances are 0:09:20.070 --> 0:09:21.270 that's actually work. 0:09:23.000 --> 0:09:27.560 Interesting. So I imagine there are scenarios where people are 0:09:27.559 --> 0:09:29.570 asked to do things that are outside the scope of 0:09:29.570 --> 0:09:34.640 their work and it does that factor in because, okay, 0:09:34.700 --> 0:09:38.150 so I'm I'm trying to think for people who who 0:09:38.150 --> 0:09:40.310 don't have that legal background, what kind of questions would 0:09:40.309 --> 0:09:42.829 be asked here? So your person who's a stock boy 0:09:42.830 --> 0:09:47.450 who is asked to do something for a birthday party 0:09:47.480 --> 0:09:50.030 set up for one of the other employees. And I 0:09:50.030 --> 0:09:52.070 imagine that if you were to talk to that person 0:09:52.070 --> 0:09:56.120 and say, you know, did you consider this work? Is 0:09:56.120 --> 0:09:59.449 this a subjective standard or objective standard when we're talking 0:09:59.450 --> 0:10:01.400 about what is or isn't considered work? 0:10:02.030 --> 0:10:06.229 It's an objective standard. That's that's okay. It has a 0:10:06.230 --> 0:10:11.300 third party, somebody who is looking at that job title, 0:10:11.510 --> 0:10:14.360 the job function and how it fits into the business. 0:10:14.570 --> 0:10:17.720 Would a reasonable person conclude that? Yes, that's and that's 0:10:17.720 --> 0:10:24.199 an intrinsic that's indispensable. The perform task has to be done. 0:10:24.200 --> 0:10:26.600 Every day is part of that job. That's that's what 0:10:27.110 --> 0:10:29.720 tests for work. So, yeah, it's an objective test, not 0:10:29.720 --> 0:10:30.920 a subjective test. 0:10:31.610 --> 0:10:35.420 Okay. And so if it's not something that's actually work, 0:10:35.420 --> 0:10:38.900 then kind of falls by the wayside pretty quick. Right? 0:10:39.770 --> 0:10:42.080 Right. So here's here's kind of a real world example 0:10:42.080 --> 0:10:45.470 from my personal life. When I was in in college, 0:10:45.470 --> 0:10:48.200 I worked at a furniture warehouse and we would load 0:10:48.200 --> 0:10:52.100 up trucks, you know, people who are moving. And one 0:10:52.100 --> 0:10:54.530 day the owner of the company gave me 20 bucks 0:10:54.530 --> 0:10:59.420 and said, Go get my car washed. Hmm. So I did. 0:10:59.510 --> 0:11:03.530 Of course. And, yeah, I came back and wondered whether 0:11:03.530 --> 0:11:06.770 I should give him his change back. But I did that, too. And, yeah, 0:11:07.010 --> 0:11:09.770 and I never got docked for that half hour. I 0:11:09.770 --> 0:11:12.710 was gone. I never punched out to go do that. 0:11:13.010 --> 0:11:15.500 You know, he's paying me. He just chose to have 0:11:15.500 --> 0:11:19.400 me wash his car rather than move furniture. But if 0:11:19.400 --> 0:11:22.010 I was trying to make a claim for that as 0:11:22.010 --> 0:11:24.860 being off the clock work, it wouldn't meet the test. 0:11:25.070 --> 0:11:28.160 You know, wash having the boss's car washed and taking 0:11:28.160 --> 0:11:30.860 it out and returning it from the car wash had 0:11:30.860 --> 0:11:34.910 nothing to do with my warehouse and furniture moving assignments. So, 0:11:35.150 --> 0:11:38.180 you know that that's an example that that just wouldn't 0:11:38.179 --> 0:11:41.720 meet the test. But notice how I said my employer 0:11:41.720 --> 0:11:44.030 did not ask me to punch out. He didn't give 0:11:44.300 --> 0:11:46.790 me the half hour. I got paid. So no harm, 0:11:46.790 --> 0:11:47.450 no foul. 0:11:48.470 --> 0:11:50.510 Well, I imagine there's a lot of people who are 0:11:50.510 --> 0:11:53.780 being asked to do things outside the scope of work 0:11:54.170 --> 0:11:58.370 that are not on their hourly time. BLOCK So if 0:11:58.400 --> 0:12:01.699 you're what about a in a situation where he asked 0:12:01.700 --> 0:12:04.400 you to have his car washed after you had just 0:12:04.400 --> 0:12:07.400 clocked out, that's not considered a part of your normal 0:12:07.400 --> 0:12:10.699 scope of work. However, you're still being asked to do 0:12:10.700 --> 0:12:12.620 something that you wouldn't normally do. Could that could be 0:12:12.620 --> 0:12:15.920 considered some other violation or something like that? 0:12:17.470 --> 0:12:21.880 Unfortunately, no, that's not fall, in my opinion, under the 0:12:21.880 --> 0:12:26.320 definition of work. So, you know, in your scenario, you're 0:12:26.320 --> 0:12:28.330 dealing with a lot of the same elements we've been 0:12:28.330 --> 0:12:33.370 talking about here so far. Power imbalance, pressure from above, 0:12:33.610 --> 0:12:39.580 implicit promises of of reward. But under the law, you know, 0:12:39.580 --> 0:12:41.890 as we've talked about, that first element of an off 0:12:41.890 --> 0:12:45.069 the clock work claim is it has to be indispensable 0:12:45.250 --> 0:12:49.270 or an intrinsic element to the principal activities of the job. And. 0:12:49.510 --> 0:12:51.910 Going to get the car wash for the boss really 0:12:51.910 --> 0:12:56.290 has nothing to do with moving furniture and loading trucks. 0:12:56.740 --> 0:12:58.780 Of course, it has everything to do with me getting 0:12:58.780 --> 0:13:01.460 scheduled to work next week. It has everything to do. 0:13:01.780 --> 0:13:06.070 Keeping a good relationship at the at the warehouse. But 0:13:06.070 --> 0:13:09.309 it would not a basis for a wage and hour lawsuit. 0:13:10.360 --> 0:13:13.420 And from a like, you know, I'm not trying to 0:13:13.420 --> 0:13:16.240 get too far sidetracked here, but from a liability standpoint, 0:13:16.240 --> 0:13:19.330 legally speaking, it could mean a lot for that business 0:13:19.330 --> 0:13:21.520 owner if you were to get into a car accident 0:13:21.820 --> 0:13:25.059 with his car, like if it's considered a part of like, 0:13:25.059 --> 0:13:26.860 you know, But anyways, I don't want to get too, 0:13:26.890 --> 0:13:28.990 too far into something else because I know we want 0:13:28.990 --> 0:13:29.949 to talk about wage and hour. 0:13:30.370 --> 0:13:32.559 Yeah, trusting me to drive your car when I was 0:13:32.559 --> 0:13:35.020 in college is certainly a whole nother podcast. 0:13:37.330 --> 0:13:41.380 And a whole nother host of liability there. Okay, So 0:13:41.650 --> 0:13:44.410 let's talk about I think the second element was did 0:13:44.410 --> 0:13:46.870 the employer know or should have known the work was 0:13:46.870 --> 0:13:47.859 being performed? Is that right? 0:13:48.790 --> 0:13:52.600 Exactly. So once we've crossed the first threshold and it's 0:13:52.600 --> 0:13:56.320 actually work that you're asking, you're being asked to do 0:13:56.410 --> 0:14:01.760 either early or late or on your day off. Then 0:14:01.760 --> 0:14:05.570 the next element is, did your employer actually know? So, 0:14:05.570 --> 0:14:07.250 you know, let's talk about some of those scenarios where 0:14:07.250 --> 0:14:10.790 the middle management or the foreman or the office manager, 0:14:11.150 --> 0:14:13.370 you know, with a wink and a nod or explicitly 0:14:13.370 --> 0:14:16.309 says to you, come on in on Saturday, or come on, 0:14:16.309 --> 0:14:19.160 stay late tomorrow. We've got a few extra things to do. 0:14:19.760 --> 0:14:24.170 That's not the employer we're talking about in this element 0:14:24.170 --> 0:14:27.290 of the test. Who we're talking about is actually the 0:14:27.290 --> 0:14:31.130 corporation or the company or the owner of the business. 0:14:31.370 --> 0:14:35.090 That's the employer that we're talking about. And it is 0:14:35.090 --> 0:14:39.710 a defense. If they don't know that the work is 0:14:39.710 --> 0:14:43.040 being performed now, it's not quite as cut and dry 0:14:43.040 --> 0:14:45.350 as I just made it sound, because there's also the 0:14:45.350 --> 0:14:51.170 second criteria knew or should have known. So let me 0:14:51.170 --> 0:14:54.890 give you a great example of the should have known. Okay. 0:14:56.300 --> 0:15:00.770 So so let's say, for example, you're a call center worker, 0:15:01.310 --> 0:15:05.750 and in a call center you have to have a computer. 0:15:06.080 --> 0:15:08.690 It has to be turned on. You have to have 0:15:08.690 --> 0:15:12.740 your headset that has to be booted up. There's usually 0:15:12.740 --> 0:15:16.700 three or four other programs that you have to have 0:15:16.700 --> 0:15:21.770 loaded on your laptop or your or your computer and opened. Oftentimes, 0:15:21.770 --> 0:15:26.270 there's an early set of emails from your manager, things 0:15:26.270 --> 0:15:29.210 that are going on today. You have to read those 0:15:29.660 --> 0:15:33.500 and then your shift starts at 7 a.m.. Well, in 0:15:33.500 --> 0:15:37.940 call centers, it's a very automated, very high tech business 0:15:37.940 --> 0:15:43.040 environment and those calls are routed to you starting at 7:00, 0:15:43.350 --> 0:15:47.030 not nine and not seven or one. They start coming in. 0:15:47.450 --> 0:15:49.490 And if you were working at a call center and 0:15:49.490 --> 0:15:53.540 your shift started at 7:00, that first call comes in 0:15:53.540 --> 0:15:57.080 at 7:00 or 701. You have to be ready to 0:15:57.080 --> 0:16:01.190 take that call. Everything I've just told you, Justin, is 0:16:01.730 --> 0:16:04.850 for that industry. Anybody running a call center over the 0:16:04.850 --> 0:16:08.570 last ten years would tell you, Yeah, that's exactly how 0:16:08.570 --> 0:16:13.100 it works now. How in the world are you supposed 0:16:13.100 --> 0:16:16.070 to be ready to take a call if you arrive 0:16:16.070 --> 0:16:20.300 at your desk and sit down at 659 when you've 0:16:20.300 --> 0:16:25.730 got five, seven, nine, maybe even 12 minutes of elementary work, 0:16:26.210 --> 0:16:29.510 preliminary activity that needs to be done so that at 0:16:29.510 --> 0:16:33.320 7:00 you can take that first call. The answer is 0:16:33.320 --> 0:16:34.130 it's impossible. 0:16:34.460 --> 0:16:36.080 Yeah. There's a lot of prep, it sounds like. 0:16:36.240 --> 0:16:41.420 Where the employer should have known that their workers at 0:16:41.420 --> 0:16:45.440 a 7:00 shift had to be paid an additional amount 0:16:45.440 --> 0:16:49.190 of time to set up their computers, get their headsets working, 0:16:49.190 --> 0:16:52.430 open up the apps and read any, you know, early 0:16:52.430 --> 0:16:54.530 emails from from the department head. 0:16:55.310 --> 0:16:59.300 Yeah. So it's the two elements of that the know 0:16:59.300 --> 0:17:02.330 or should have known. I mean no is just pretty straightforward. 0:17:02.330 --> 0:17:05.060 It's explicit. It's just knowledge that this person is working 0:17:05.060 --> 0:17:07.760 and they're not clocked in and the should've known definitely 0:17:07.760 --> 0:17:10.550 makes sense to because if you have these requirements for 0:17:10.550 --> 0:17:15.350 all this the setup, you can't claim that they have 0:17:15.350 --> 0:17:17.810 to start right at seven and not pay them for 0:17:17.810 --> 0:17:20.990 that prep that they were doing before seven. So you 0:17:20.990 --> 0:17:24.320 should have known that since you made these requirements for 0:17:24.320 --> 0:17:27.890 them to that they needed to take this extra time 0:17:27.890 --> 0:17:29.629 and therefore should be paid for that, correct? 0:17:30.050 --> 0:17:31.100 That's exactly right. 0:17:31.400 --> 0:17:34.129 So that all makes sense to and that the with 0:17:34.130 --> 0:17:37.490 regards to the know or should have known. I did 0:17:37.490 --> 0:17:41.750 want to ask, though, because you mentioned that lower level management, 0:17:41.840 --> 0:17:46.310 mid management might not be able to we might not 0:17:46.310 --> 0:17:49.190 be able to hold accountable the actual corporation, the owner, 0:17:49.430 --> 0:17:52.729 because they didn't know what was going on and we 0:17:52.730 --> 0:17:55.460 can't really hold them legally liable. Is that correct? 0:17:57.700 --> 0:18:01.270 Well, you know, like we talked about it, it depends 0:18:01.270 --> 0:18:04.900 on what the activity is. And that's why these elements 0:18:04.900 --> 0:18:07.750 all kind of dovetailed together. And they fit very nicely. 0:18:08.260 --> 0:18:13.990 Because if if the activity is an indispensable and important 0:18:13.990 --> 0:18:17.129 part of the of the job duty. Well, then the 0:18:17.130 --> 0:18:19.440 employer should know what needs to be done. The call 0:18:19.440 --> 0:18:22.740 center example we just gave is a perfect example. Here's 0:18:22.740 --> 0:18:27.030 another one working in a restaurant. How many times does 0:18:27.030 --> 0:18:31.230 a waiter or a waitress or a hostess come in 0:18:31.230 --> 0:18:34.919 early to fold napkins, set the table, put the flowers 0:18:34.920 --> 0:18:39.240 in the base, make sure the silverware spotless, the wineglasses spotless. 0:18:39.570 --> 0:18:42.030 That's done all the time by restaurant workers again. I 0:18:42.030 --> 0:18:44.850 have personal experience that you may have experience with that. 0:18:45.359 --> 0:18:48.270 So the owner of the restaurant can't say, My gosh, 0:18:48.270 --> 0:18:50.879 I didn't know that was happening. I feel awful, but 0:18:51.030 --> 0:18:54.630 I'm sorry. I just didn't know that was happening. Well, 0:18:54.630 --> 0:18:57.210 that's not fair. It's not reasonable. It's not going to 0:18:57.359 --> 0:18:59.220 that's not going to hold water when you open your 0:18:59.220 --> 0:19:02.550 restaurant at noon for lunch. Guess what? That table didn't 0:19:02.550 --> 0:19:06.179 set itself magically. You know, your manager was having the 0:19:06.180 --> 0:19:09.010 waitstaff and the hostess come in 10 minutes, early 15 0:19:09.010 --> 0:19:11.580 minutes early to fold the napkins and do all that work. 0:19:12.240 --> 0:19:17.220 So the elements really are dovetailing together as we move 0:19:17.220 --> 0:19:19.500 through this conversation. On the other hand, if we go 0:19:19.500 --> 0:19:22.619 back to the carwash example and my manager had to 0:19:22.619 --> 0:19:25.020 go wash the car at 1130 and then be ready 0:19:25.020 --> 0:19:28.830 to go at noon. Well, the employer could say, I'm sorry, 0:19:28.830 --> 0:19:31.380 I feel bad about that, too. But I had no 0:19:31.380 --> 0:19:34.440 idea that the manager was asking the waitstaff to wash 0:19:34.440 --> 0:19:35.460 and wax this car. 0:19:37.540 --> 0:19:41.770 Yeah. So is there is there recourse where say you 0:19:41.770 --> 0:19:46.030 have a. I do have experience as a manager of 0:19:46.030 --> 0:19:48.340 a restaurant and an employee of a restaurant for many 0:19:48.340 --> 0:19:51.429 years before I went to law school. And I'm thinking 0:19:51.430 --> 0:19:54.040 of maybe someone who was considered a key holder, which 0:19:54.040 --> 0:19:55.960 is not a full time manager, but someone who just 0:19:56.200 --> 0:19:59.680 helps out as a manager and say they knew that 0:19:59.680 --> 0:20:02.889 someone was working or doing things off the clock. Are 0:20:02.890 --> 0:20:06.940 we is the employers still going to be held liable 0:20:06.940 --> 0:20:10.149 in that situation? And it sounds like maybe not. 0:20:12.040 --> 0:20:14.470 Well, I don't want to get too far. Stray from from, 0:20:14.470 --> 0:20:17.080 you know, the laws that we're talking about here. But 0:20:17.950 --> 0:20:21.459 there are other claims that lawyers such as myself and 0:20:21.460 --> 0:20:24.340 at my firm bring that would be designed to scoop 0:20:24.340 --> 0:20:29.710 that stuff up. Breach of contract, unjust enrichment. Those are 0:20:29.710 --> 0:20:32.740 other claims under the law. That would probably be a 0:20:32.740 --> 0:20:36.790 better fit and would be less susceptible to a defense 0:20:37.119 --> 0:20:41.440 by the employer lawyer under the technical requirements of wage 0:20:41.440 --> 0:20:42.190 and hour laws. 0:20:43.270 --> 0:20:46.330 Yeah. So it's still it's still some kind of violation 0:20:46.330 --> 0:20:51.280 or still some kind of there is recourse or compensation available, 0:20:51.430 --> 0:20:54.040 but it might not necessarily fit perfectly in the box 0:20:54.040 --> 0:20:57.220 for the wage and hour law. So if you're listening 0:20:57.220 --> 0:21:00.580 to something like this and you feel like you're your claim, 0:21:00.580 --> 0:21:03.400 you have some kind of claim to and you think, well, 0:21:03.400 --> 0:21:05.169 I you know, it might not be explicit or it 0:21:05.170 --> 0:21:07.869 might not hit this particular element. Well, there's obviously a 0:21:07.869 --> 0:21:11.620 lot of different things that an attorney such as Jason 0:21:11.619 --> 0:21:13.330 would be able to help you with in figuring out 0:21:13.690 --> 0:21:17.260 where there is compensation for a claim that you might have, 0:21:17.260 --> 0:21:20.109 whether it be through wage and hour or some other 0:21:20.109 --> 0:21:22.330 kind of unknown thing. Like a lot of people don't 0:21:22.330 --> 0:21:26.200 know what unjust enrichment is. And, you know, I guess 0:21:26.200 --> 0:21:29.830 I can try and give like a pretty generic explanation. 0:21:29.830 --> 0:21:32.620 And Jason, feel free to chime in. So I would 0:21:32.619 --> 0:21:35.620 say unjust enrichment is where someone is getting a benefit 0:21:35.619 --> 0:21:40.030 from something you're doing without either like a contract or, 0:21:40.090 --> 0:21:43.419 you know, and it doesn't necessarily have to be monetary, 0:21:43.420 --> 0:21:46.240 in my knowledge. Unjust enrichment is just someone who's getting 0:21:46.240 --> 0:21:50.680 a benefit from something that you did that probably was 0:21:50.680 --> 0:21:53.950 not intended to be so. Would you agree with something 0:21:53.950 --> 0:21:54.310 like that? 0:21:54.760 --> 0:21:57.760 Right. I think that's a that's a wonderful definition. And 0:21:58.210 --> 0:22:02.770 the unfair thread is is, you know, woven through that 0:22:02.770 --> 0:22:05.620 as well. And so in our little example, yeah, you know, 0:22:05.619 --> 0:22:10.840 wash again, it's it's really unfair to quote unquote ask 0:22:10.840 --> 0:22:13.930 the hostess or the waiter to go wash the car. 0:22:14.950 --> 0:22:19.330 Even given the situation, the only reason they're saying yes 0:22:19.510 --> 0:22:22.240 is because they they know you are their manager and 0:22:22.240 --> 0:22:25.960 they need the job. And there's an implicit, you know, 0:22:25.960 --> 0:22:28.000 threat that if you're not going to help me out 0:22:28.000 --> 0:22:30.940 with my personal life, I'm going to make yours miserable. 0:22:31.310 --> 0:22:34.179 So that's the other thread of it on, you know, 0:22:34.240 --> 0:22:37.390 the thread, I should say, of an unjust enrichment claim. 0:22:37.810 --> 0:22:40.720 And so something like that would certainly be be something 0:22:40.720 --> 0:22:42.550 we would look at for our client who had that 0:22:42.550 --> 0:22:43.600 situation going on. 0:22:45.130 --> 0:22:47.859 I do want to ask you, I want to go 0:22:47.859 --> 0:22:50.229 over that last element in just one second. But I 0:22:50.230 --> 0:22:54.080 do after this, I want to talk about like compensation. 0:22:54.100 --> 0:22:57.190 How is compensation calculated? And, you know, is there double 0:22:57.190 --> 0:23:03.040 damages for really wrongful acts by the employer? But let's 0:23:03.040 --> 0:23:06.609 talk about what workers are actually covered by these wage laws, 0:23:06.609 --> 0:23:09.040 are they? I know you mentioned this in the top 0:23:09.040 --> 0:23:11.620 of or the beginning of the show, but there's got 0:23:11.619 --> 0:23:16.060 to be some people who are excluded, unfortunately, from, you know, 0:23:16.060 --> 0:23:19.510 unfair practices like off the clock, you know, violations. 0:23:21.109 --> 0:23:25.639 Right. So like every law, there's exceptions. So if you 0:23:25.640 --> 0:23:29.629 think about it, why else would you penalize really an 0:23:29.630 --> 0:23:34.690 employer for having work force work over 40 hours a week? Right. 0:23:34.700 --> 0:23:36.830 Over 40 hours a week means you get time and 0:23:36.830 --> 0:23:39.560 a half in America. Well, that's the law we're talking about. 0:23:40.010 --> 0:23:42.919 And so what Congress wanted to do was say, stop 0:23:43.040 --> 0:23:47.930 overworking one person and instead hire the second person. We're 0:23:47.930 --> 0:23:52.100 in a depression. Unemployment's through the roof. This country needs workers. 0:23:52.100 --> 0:23:55.940 Everybody needs a job. It has tremendous benefits. It creates 0:23:56.450 --> 0:24:01.700 tax dollars, stable communities, etc., etc.. So, you know, what 0:24:01.700 --> 0:24:04.460 the law was designed to do was to get people 0:24:04.460 --> 0:24:06.170 back to work. And the way it chose to do 0:24:06.170 --> 0:24:09.080 it was set a number at 40. And so if 0:24:09.080 --> 0:24:14.780 you are working in a in a hourly position. And 0:24:14.780 --> 0:24:17.840 you're working more than 40 hours a week. The law 0:24:17.840 --> 0:24:22.879 kicks in for overtime if that same job is is 0:24:22.880 --> 0:24:26.180 at issue and you're and you're not being paid minimum wage, 0:24:26.180 --> 0:24:30.410 then that also is protected by the statute. Primarily, what 0:24:30.410 --> 0:24:36.020 our lawsuits are for for overtime and it's for hourly workers. Now, 0:24:36.020 --> 0:24:43.280 having said that, there are literally hundreds of exemptions and 0:24:43.790 --> 0:24:48.410 there's sometimes common sense to them. One of the early 0:24:48.410 --> 0:24:53.150 ones I found somewhat intriguing was the carnival worker exemption. 0:24:54.160 --> 0:25:02.620 So carnival workers are clearly hourly workers and they travel 0:25:02.619 --> 0:25:05.109 all over the country and they go from county to 0:25:05.109 --> 0:25:10.630 county fair, City fair. And for whatever reason, their lobbyists 0:25:10.630 --> 0:25:15.429 were successful in getting an exemption from them. And, you know, 0:25:15.430 --> 0:25:18.280 the argument is woe is me. We couldn't stay in 0:25:18.280 --> 0:25:20.919 business if we had to pay for all this downtime. 0:25:21.790 --> 0:25:24.790 Mm hmm. I don't know. Maybe it makes sense. You know, 0:25:24.790 --> 0:25:28.700 I would imagine there is a lot of downtime. But. 0:25:28.720 --> 0:25:31.389 But be that as it may, that's. That's an exemption. 0:25:31.510 --> 0:25:36.220 Flight attendants, similar situation. So there's a lot of different 0:25:36.430 --> 0:25:41.950 jobs and and even hourly jobs that frankly, are not 0:25:41.950 --> 0:25:43.750 covered by the wage and hour law. And you would 0:25:43.750 --> 0:25:47.620 just have to talk to a specialist such as myself 0:25:47.619 --> 0:25:53.409 to find out if your particular job title and position 0:25:53.410 --> 0:25:58.450 was exempt or not. The other big exemption and I 0:25:58.450 --> 0:26:01.479 shouldn't say exemption because exemption really is for hourly workers, 0:26:01.480 --> 0:26:06.129 but but it's the phrase we use is high compensated 0:26:06.130 --> 0:26:13.420 individuals like executives, people who are actually running the business 0:26:13.420 --> 0:26:18.340 or people who are working in a administrative capacity. Getting 0:26:18.340 --> 0:26:21.340 back to my example, at the furniture warehouse, there was 0:26:21.340 --> 0:26:24.869 a whole front office that handled the invoicing and the paperwork. 0:26:24.880 --> 0:26:27.370 They had nothing to do with the furniture. They didn't 0:26:27.369 --> 0:26:30.220 move furniture, they didn't run trucks. They didn't do anything 0:26:30.220 --> 0:26:32.590 that was part of that core business. But of course, 0:26:32.590 --> 0:26:37.210 you had to have them. That's an administrative exemption. So 0:26:37.210 --> 0:26:39.730 we could go on and maybe someday we'll do another 0:26:39.730 --> 0:26:42.340 podcast about all the exemptions. I'm not sure it's all 0:26:42.340 --> 0:26:45.940 that terribly interesting. But, you know, back to your your 0:26:45.940 --> 0:26:48.340 real question. If you just think about it in terms 0:26:48.340 --> 0:26:53.500 of hourly workers and not not in a supervisory capacity 0:26:53.500 --> 0:26:57.459 or not as an executive, you pretty much have the 0:26:57.460 --> 0:27:00.640 working definition of who's covered in anybody who's in that 0:27:00.640 --> 0:27:03.730 type of a position that is being asked to work 0:27:03.730 --> 0:27:08.500 off the clock should seriously consider coming forward and taking action. 0:27:09.580 --> 0:27:13.750 You know, part of part of what our firm specializes 0:27:13.750 --> 0:27:18.369 in is group cases. So, you know, that's that's a 0:27:18.369 --> 0:27:20.800 whole other podcast. We probably will we will want to 0:27:20.800 --> 0:27:23.860 talk about as to how those group cases or class 0:27:23.859 --> 0:27:28.060 actions get put together. And that's where you can really, 0:27:28.060 --> 0:27:32.230 really have some fun, because businesses at that point have 0:27:32.230 --> 0:27:35.260 a lot of money at stake. It's an entire classification 0:27:35.260 --> 0:27:38.980 of workers or a whole state of workers. And as 0:27:38.980 --> 0:27:40.910 we all know, the way the world works, you know, 0:27:40.930 --> 0:27:43.150 the more at stake, the more attention you're going to get, 0:27:43.150 --> 0:27:46.360 the bigger club you kind of wield to solve these problems. 0:27:46.930 --> 0:27:51.490 Yeah, it's very interesting, too, because there's so many nuances 0:27:51.520 --> 0:27:54.730 to this field of law. And, you know, as I mentioned, 0:27:54.730 --> 0:27:56.889 the beginning of the show, I'm an estate planning attorney. 0:27:56.900 --> 0:28:01.720 I focus on estate planning. And I, I was looking 0:28:01.720 --> 0:28:03.460 at some of the material when it comes to off 0:28:03.460 --> 0:28:05.710 the clock work. And I was like, this is fascinating 0:28:05.710 --> 0:28:08.500 because I'm sure there's an exemption to an exemption to 0:28:08.500 --> 0:28:11.199 an exemption. And you can get so far into the 0:28:11.200 --> 0:28:14.950 weeds for certain things. And I guess like so you're 0:28:14.950 --> 0:28:19.790 saying that general hourly employees, non executives, non, you know, 0:28:19.810 --> 0:28:23.500 managerial were the ones who are who this law really 0:28:23.500 --> 0:28:28.270 applies to. What about salaried employees that would be exempt 0:28:28.270 --> 0:28:29.590 from this as well. 0:28:30.609 --> 0:28:33.070 Right. So there's there's you know I don't know about 0:28:33.070 --> 0:28:34.990 you but I was kind of always brought up to 0:28:34.990 --> 0:28:37.180 believe that if you were on salary, you didn't get 0:28:37.180 --> 0:28:39.790 overtime if you were hourly and did get overtime. It's 0:28:39.790 --> 0:28:42.700 a little bit more complicated than that because there's a 0:28:42.700 --> 0:28:45.310 there's a job duties test. And you have to you 0:28:45.310 --> 0:28:47.530 have to get into some of the weeds in terms 0:28:47.530 --> 0:28:51.400 of the job duties. Mm hmm. But basically, you know, 0:28:51.400 --> 0:28:56.750 for for for most instances, hourly workers are who are 0:28:56.750 --> 0:28:59.490 or always kind of the target for this for this 0:28:59.500 --> 0:29:01.510 law and the coverage of its benefits. 0:29:02.440 --> 0:29:04.780 And that makes sense. And so you talked about this 0:29:04.780 --> 0:29:07.600 is obviously something you need to speak to a specialist about. 0:29:07.930 --> 0:29:11.380 And these are common at your firm at some resorts, 0:29:11.380 --> 0:29:15.250 or is it, you know, 20% of what you do pretty, 0:29:15.250 --> 0:29:15.910 pretty often? 0:29:16.900 --> 0:29:22.660 No, the department that I co-chair and manage works exclusively 0:29:22.660 --> 0:29:27.070 on these cases. We file about 50 to 60 cases 0:29:27.070 --> 0:29:31.990 a year. Our cases are in almost every state. We 0:29:31.990 --> 0:29:34.630 still chuckle about wanting to get Hawaii and fight for 0:29:34.630 --> 0:29:38.620 that assignment. But. But we're all over the country. It 0:29:38.620 --> 0:29:41.860 is a specialization. As I said, there's there's a lot 0:29:41.860 --> 0:29:44.470 of areas within the law and you've alluded to some 0:29:44.470 --> 0:29:47.650 of the specialization, but what we do are handle the 0:29:47.650 --> 0:29:50.380 class actions and that that is a whole nother level 0:29:50.380 --> 0:29:54.790 of specialization. There's a whole other test and a set 0:29:54.790 --> 0:29:58.719 of questions that the lawyer has to, you know, be 0:29:58.720 --> 0:30:01.270 successful in. In addition to the things you and I 0:30:01.270 --> 0:30:04.240 have talked about here today. In order for a case 0:30:04.240 --> 0:30:06.400 to be certified as either a class action or a 0:30:06.400 --> 0:30:11.140 collective action. And so we have. About 2 to 3 0:30:11.170 --> 0:30:15.730 administrative staff or what you call paralegal positions that are 0:30:15.730 --> 0:30:19.360 working on these cases. There are four senior partners such 0:30:19.360 --> 0:30:22.500 as myself, who specialize in these cases and would and 0:30:22.510 --> 0:30:26.860 would handle the primary court hearings and any trials. And 0:30:26.860 --> 0:30:31.330 then we have three or four associate attorneys, younger attorneys 0:30:31.330 --> 0:30:34.660 that are assisting us with both all aspects of the 0:30:34.660 --> 0:30:40.150 of the case and the preparation. And then lastly, but 0:30:40.150 --> 0:30:44.080 certainly not least, is our intake specialists. So we have 0:30:44.530 --> 0:30:50.140 anywhere varies from year to year, but 3 to 5000 leads, calls, 0:30:50.140 --> 0:30:54.750 client while they come in a year with potential cases. 0:30:54.760 --> 0:30:58.870 And that's a full time position for our intake specialist. 0:30:59.230 --> 0:31:04.690 Absolutely manages the software for that and and is is 0:31:04.690 --> 0:31:07.630 a pretty darn good resource in terms of the law 0:31:07.630 --> 0:31:10.240 and what type of cases there are. And she can 0:31:10.240 --> 0:31:13.060 decide right away whether or not that needs to be 0:31:13.060 --> 0:31:16.140 escalated to one of the attorneys or whether it's the 0:31:16.180 --> 0:31:18.070 what we call a turn back. It just doesn't fit 0:31:18.070 --> 0:31:18.520 the law. 0:31:19.240 --> 0:31:21.340 Yeah, I think that a lot of people don't really 0:31:21.340 --> 0:31:23.200 think about that aspect. I do get a lot of 0:31:23.200 --> 0:31:26.650 calls at my firm for other things other than estate planning. 0:31:26.650 --> 0:31:30.160 And it's it's really a challenge sometimes to train people 0:31:30.490 --> 0:31:33.990 to know what is the appropriate response, whether it's something 0:31:33.990 --> 0:31:36.520 that we can help them with or not. And that 0:31:36.520 --> 0:31:40.090 requires a lot of hands on training. And with with 0:31:40.090 --> 0:31:43.570 this field of law, I imagine this intake specialist, you know, 0:31:43.570 --> 0:31:46.270 whether or not she has a legal background, I guess, 0:31:46.660 --> 0:31:48.310 you know, it would be it would be helpful if 0:31:48.310 --> 0:31:52.120 she did. But if she just knows what you're looking for, 0:31:52.120 --> 0:31:55.150 if you have those kind of details, that would be 0:31:55.150 --> 0:31:58.209 so helpful because as an attorney, we don't want to 0:31:58.210 --> 0:32:01.960 take on something or waste time, the client's time, our time. 0:32:02.080 --> 0:32:04.630 We want to make sure we're being efficient. And and 0:32:04.630 --> 0:32:07.360 I imagine that it's really difficult to find if you're 0:32:07.360 --> 0:32:10.540 getting that many inquiries every year. You really need to 0:32:10.540 --> 0:32:12.820 have someone who's going to be able to weed out 0:32:13.150 --> 0:32:15.430 the ones that just don't apply or something that you 0:32:15.430 --> 0:32:16.120 can't help with. 0:32:17.780 --> 0:32:21.710 Yeah, it it's a daunting task. She'll tell you. I mean, 0:32:21.710 --> 0:32:25.790 it's it's it's a very, very broad set of questions 0:32:25.790 --> 0:32:28.610 and fact patterns, and she does a lot more than 0:32:28.610 --> 0:32:32.240 just filter the cases to. I mean, people ask questions 0:32:32.510 --> 0:32:38.540 on on hot button issues, you know, Can I get fired? Yes. Yeah. What? 0:32:38.540 --> 0:32:40.340 You know, what's going to happen to me if we 0:32:40.340 --> 0:32:44.240 don't win? Will I get blackballed in my industry over 0:32:44.240 --> 0:32:47.540 this lawsuit even if we do win? You know, I'm 0:32:47.540 --> 0:32:50.240 looking forward to getting back together with you and talking 0:32:50.240 --> 0:32:52.820 about these and other podcasts, because there's just a lot 0:32:52.820 --> 0:32:56.690 of a lot of other topics. You know, how do 0:32:56.690 --> 0:33:00.020 I pay you? Well, you know, you don't that's one 0:33:00.020 --> 0:33:02.960 of the features of of the law and of the 0:33:02.960 --> 0:33:07.640 of the, you know, the plaintiff's lawyer. We only get 0:33:07.640 --> 0:33:10.760 paid if we win. The client never pays us. It's 0:33:10.760 --> 0:33:13.190 a portion of their wages, you know, a portion of 0:33:13.190 --> 0:33:17.360 the settlement that that we would apply for as our fee. 0:33:17.660 --> 0:33:20.120 And here's a wonderful part about the law. There is 0:33:20.120 --> 0:33:23.870 an attorney fee shifting provision in the statute. So what 0:33:23.870 --> 0:33:26.690 does that mean? That means the defendant, the employer, if 0:33:26.690 --> 0:33:30.550 they lose, they've got to pay your legal fees. Oh, so, 0:33:30.590 --> 0:33:35.180 you know, it's a it's a fantastic statute. Our intake 0:33:36.170 --> 0:33:40.010 specialist understands all the key points, and she will field 0:33:40.010 --> 0:33:45.440 questions from from a wide array of perspectives. Some of 0:33:45.440 --> 0:33:47.810 the stuff we talked about and a whole lot more. 0:33:49.040 --> 0:33:52.670 I would I would love to hear her process because 0:33:52.670 --> 0:33:56.690 I'm pretty fascinated by that. And in just this field 0:33:56.690 --> 0:33:59.510 of law in general, I kind of touched on this 0:33:59.510 --> 0:34:02.000 a second ago and maybe this will kind of I'll 0:34:02.030 --> 0:34:07.810 weave two questions together. What kind of damages. I know 0:34:07.810 --> 0:34:10.569 you mentioned, obviously compensation. And then, you know, the attorneys 0:34:10.570 --> 0:34:13.980 get paid through that. But are there situations where you'll 0:34:13.989 --> 0:34:18.759 have double or treble damages for a particularly egregious act? 0:34:19.480 --> 0:34:21.640 Do you have any kind of story that we can 0:34:21.640 --> 0:34:25.750 that you can tell? Redacted information, of course, to make 0:34:25.750 --> 0:34:28.029 sure it's kept private. But I'm sure a lot of 0:34:28.030 --> 0:34:30.730 people would like to hear some kind of interesting story 0:34:30.730 --> 0:34:33.969 where someone was really hit hard and you had a 0:34:33.969 --> 0:34:36.190 nice success story for your for your clients. 0:34:38.460 --> 0:34:40.770 Well, there's so many. And, you know, I hate to 0:34:40.770 --> 0:34:45.210 sound cliche, but I've been practicing law for over 30 years, 0:34:45.210 --> 0:34:47.580 you know, and I've been in this for the last 0:34:47.940 --> 0:34:51.840 17 or 18 years. And, you know, with 3000 leads 0:34:51.840 --> 0:34:56.069 coming in a year, the the number of cases starting 0:34:56.070 --> 0:34:59.190 to mount. So I'll say I'll tell you a couple 0:34:59.190 --> 0:35:03.180 of things. The statute, the wage and hour law we've 0:35:03.180 --> 0:35:05.790 been talking about today, the Fair Labor Standards Act or 0:35:05.790 --> 0:35:10.350 the FLSA, not only awards you attorney fees if you win, 0:35:10.680 --> 0:35:13.710 but in addition, if there's a lack of good faith 0:35:13.710 --> 0:35:17.340 by the defendant, you know, by the employer, then the 0:35:17.340 --> 0:35:22.049 wages are liquidated, which is just a fancy word for doubling. So, 0:35:22.050 --> 0:35:24.540 you know, if you're earning 13, 14 bucks an hour 0:35:25.040 --> 0:35:27.630 and you've been having to work, you know, even 5 0:35:27.630 --> 0:35:30.510 minutes off the clock, you know, every minute is compensable. 0:35:30.510 --> 0:35:34.080 Every minute you work is compensable in this world. And 0:35:34.080 --> 0:35:38.010 it adds up tremendously quickly. If you if you have 0:35:38.010 --> 0:35:40.950 5 minutes of off the clock, work a day and 0:35:40.950 --> 0:35:43.860 you're working overtime 60 days a week and you know, 0:35:43.860 --> 0:35:46.350 you get up to four weeks of vacation or two 0:35:46.350 --> 0:35:49.410 weeks of vacation, it doesn't take long before you start 0:35:49.410 --> 0:35:53.880 talking about thousands of dollars. Mm hmm. And the law 0:35:54.540 --> 0:35:59.670 was designed, again, to really force employers to comply. It's 0:35:59.670 --> 0:36:05.970 a very labor protective statute. In most instances, the employee 0:36:05.969 --> 0:36:08.660 wins the benefit of the doubt. The old baseball analogy, 0:36:08.680 --> 0:36:11.050 the tie goes to the runner, if you will. You know, 0:36:11.160 --> 0:36:14.219 the worker is the runner in this scenario. And so 0:36:14.760 --> 0:36:18.930 you get your attorney fees paid for and you get 0:36:18.930 --> 0:36:24.569 double the damages. So it does have some fantastic protections. 0:36:26.070 --> 0:36:28.440 The reason I don't have a really good story for 0:36:28.440 --> 0:36:32.280 you in terms of a particular case where, you know, 0:36:32.280 --> 0:36:37.560 we could say we slayed the dragon or particularly effective 0:36:37.560 --> 0:36:41.189 in getting these liquidated damages is because it's a fairly 0:36:41.190 --> 0:36:47.140 easy task. You know, Yeah, the good faith violation or 0:36:47.160 --> 0:36:50.910 lack of good faith. And I don't know. I didn't 0:36:50.910 --> 0:36:54.810 know Gee was confusing. Gosh, my lawyer got it wrong. 0:36:54.930 --> 0:36:59.730 None of that works. And so basically, in every case 0:37:00.810 --> 0:37:05.310 and in every settlement, liquidated damages and attorney's fees are 0:37:05.310 --> 0:37:08.400 on the table. And part of the negotiation, you know, 0:37:08.400 --> 0:37:11.160 in addition to the base wage that wasn't paid. 0:37:11.950 --> 0:37:16.060 So one last question before we wrap up. What percentage 0:37:16.060 --> 0:37:18.850 would you say of your cases actually go to trial 0:37:18.850 --> 0:37:22.390 and what are what percentage are just settled before you 0:37:22.390 --> 0:37:23.620 even get close to trial? 0:37:25.250 --> 0:37:29.690 A. A. A review of our case filings. Know we're 0:37:29.690 --> 0:37:32.180 fairly selective in the cases that we take, but a 0:37:32.180 --> 0:37:34.700 review of our case filings will show you that less 0:37:34.700 --> 0:37:41.000 than less than 5% ever go to trial. We're going 0:37:41.000 --> 0:37:43.940 to do another podcast with you about mediation, because that's 0:37:43.940 --> 0:37:48.860 really today's substitution for trial. That's that's how most of 0:37:48.860 --> 0:37:52.190 these cases get resolved is with a mediation. And a 0:37:52.190 --> 0:37:55.760 mediation is where both sides have had a year or 0:37:55.760 --> 0:38:02.570 so to investigate the case, interview witnesses, and maybe have 0:38:02.570 --> 0:38:07.640 some preliminary legal disputes with the judge once that's over. 0:38:07.880 --> 0:38:10.460 Rather than spend a whole lot of time getting ready 0:38:10.460 --> 0:38:15.890 for trial. In today's world, in today's courts across America, 0:38:16.010 --> 0:38:21.259 mediation has really replaced trial and both sides will agree 0:38:21.260 --> 0:38:26.300 upon a third party. It's usually a retired judge or 0:38:26.300 --> 0:38:29.300 a lawyer who's got a lot of experience and later 0:38:29.300 --> 0:38:32.120 in their practice decides they want to be a mediator. 0:38:33.260 --> 0:38:36.380 They are. They are the third party that tries to 0:38:36.380 --> 0:38:39.290 get the parties to settle their case. They don't have 0:38:39.290 --> 0:38:43.130 any authority. They certainly are in charge of the case. 0:38:43.160 --> 0:38:47.180 It's all secretive from the judge, but they're very effective. 0:38:47.180 --> 0:38:52.250 They're good communicators. They're they're experts in many aspects of 0:38:52.250 --> 0:38:56.719 of courtroom and litigation and perhaps even the law that's 0:38:56.719 --> 0:39:00.919 at issue. And most of our cases, we work up 0:39:00.920 --> 0:39:04.100 for a year to to that's how long it takes. 0:39:04.489 --> 0:39:09.500 And they end up in mediation. And our clients are 0:39:09.590 --> 0:39:13.610 active in that process. Of our clients participate in the 0:39:13.610 --> 0:39:18.260 mediation and they are they are vitally important to making 0:39:18.260 --> 0:39:21.830 that final decision as to, okay, is this a good 0:39:21.830 --> 0:39:24.890 settlement or is this not a good settlement? Is this enough? 0:39:25.739 --> 0:39:28.130 You know, yeah, really being honest with us. And a 0:39:28.130 --> 0:39:30.680 lot of that inside information that only a client can 0:39:30.680 --> 0:39:31.820 bring to that process. 0:39:32.780 --> 0:39:35.779 Yeah, I know. I have so many different questions, but 0:39:35.780 --> 0:39:38.239 I know we need to wrap up here. We're going 0:39:38.239 --> 0:39:42.770 to definitely have to do this again because I mediation, compensation, 0:39:42.800 --> 0:39:44.989 all the things that are involved in this. I'm just 0:39:45.050 --> 0:39:47.690 super curious as you know, an individual and as an 0:39:47.690 --> 0:39:50.690 attorney how it all works. So we definitely need to 0:39:50.810 --> 0:39:53.239 have you back on or do a new another podcast 0:39:53.239 --> 0:39:56.990 pretty soon. So Jason Thompson from Summer Schwartz, thank you 0:39:56.989 --> 0:40:00.920 so much for all the great information. And it was 0:40:00.920 --> 0:40:03.440 it was really there was a lot of good things 0:40:03.440 --> 0:40:04.100 to think about. 0:40:05.210 --> 0:40:06.740 Thank you, Justin. Happy to be here. 0:40:14.230 --> 0:40:18.130 If you have comments, questions and show ideas, visit Somer's 0:40:18.130 --> 0:40:22.480 PC dot com. Overdue Overtime is produced at the IVC Media 0:40:22.480 --> 0:40:26.469 Lab in San Diego, California. Your host is Justin Isaac. 0:40:26.920 --> 0:40:30.280 Jessica Garcia serves as general manager. Elia Ramos is the 0:40:30.280 --> 0:40:34.300 creative director. Lina Alvarez assists with production in Chad Peace 0:40:34.300 --> 0:40:39.200 is president and founding partner. So this has been a 0:40:39.200 --> 0:40:42.469 presentation of Sommers Schwartz on the OLAS Media network. 0:40:44.719 --> 0:40:45.290 OLAS Media.