S1: Justin, thanks for having me on today. Appreciate it. Looking
S1: forward to discussing all this with you. So your future,
S1: our fight, I mean, that really is the mantra of
S1: our firm. You know, our firm takes on primarily individuals
S1: against companies, corporations and the like. And so really what
S1: that speaks to is how do you take on your
S1: employer in this context and how do you go forward
S1: and rectify any wrongs that have been done by your
S1: employer in the context of unpaid wages over time, things
S1: of that nature?
S2: So I think that what I like about this slogan
S2: to and just for the listening audience, I'm an attorney
S2: as well. I am based out here in California and
S2: San Diego, but I do estate planning. I don't deal.
S2: This is a completely foreign field of law, and I
S2: know a lot of people are under the impression that
S2: attorneys know everything about every single law, but that's not
S2: necessarily the case. So I do have a my background
S2: is in a different field of law. But what we're
S2: taught in law school is to be a an advocate
S2: for your client, take on the fight. Now, you don't
S2: want someone to take it personally. You want to have
S2: an attorney who's going to be able to help and
S2: and remove themselves from the emotion, because as a plaintiff,
S2: you are inherently more emotional. And that's why you have attorneys,
S2: because you're supposed to come in and and just go
S2: by the law. But I like the slogan of our
S2: fight because what it means is Summer Schwartz is you
S2: guys are taking on the fight with the client. You
S2: are participating not just as an attorney, but you're really
S2: trying to advocate for the client and make sure that
S2: they are compensated or made whole for maybe something that
S2: their employer has kind of taken from them. Is that
S2: is that sound about right?
S1: Jesse Yeah, sounds exactly right. And you know, I would
S1: add to that, I think, you know, we do we
S1: don't get emotional about these cases. We try not to
S1: take it to that level. But, you know, I would
S1: say we do take it personally on behalf of our clients.
S1: You know, our clients problems become our problems in the case.
S1: And so, you know, what we try to do is
S1: step up for our clients. And in the context of
S1: wage and hour under the Fair Labor Standards Act, you know,
S1: our job is to go back and right or wrong,
S1: to fight for them, to recover the unpaid wages and
S1: to put them to make them whole right, and to
S1: put them back in the position they should have been
S1: in before they called us. Yeah. To come fight for them. So, yeah.
S2: And sorry to interrupt there, but I know you mentioned
S2: the Fair Labor Standards Act and I kind of want
S2: to talk about that. If you can just give us
S2: a quick little summary. It seems like this pertains a
S2: lot to what what you guys deal with on a
S2: daily basis.
S1: So the Fair Labor Standards Act is primarily what we
S1: focus on in our practice group. We have a at
S1: our firm, we have a practice group that's dedicated to
S1: wage and hour issues, again, primarily the Fair Labor Standards Act.
S1: We also deal with state laws that tend to mirror
S1: the Fair Labor Standards Act and just. As a very,
S1: very general overview of the Fair Labor Standards Act. It
S1: protects employees against unpaid wages, including the minimum wage and overtime.
S1: There's really just the two buckets. Now, there's a lot
S1: that's involved in either the minimum wage or overtime violations,
S1: but that's generally speaking, what the act is designed to protect.
S2: Yeah, that from like a 10,000 foot view gives us
S2: a good idea. Everything really sounds like it goes through
S2: the Fair Labor Standards Act, which is a mouthful in
S2: and of itself, but it seems like everything revolves around that.
S2: And I know that there's a lot of lawsuits. I
S2: love talking about the amount of lawsuits that get filed
S2: every year just in general, but it seems like there
S2: was a lot last year looked at the notes here,
S2: 6400 lawsuits filed under the Fair Labor Standards Act last
S2: year alone. That seems like a lot. And I know
S2: that you guys deal with this a lot, too. But
S2: really what it comes down to, I guess, is what
S2: people are hoping to achieve is to hold their employer
S2: accountable for unpaid wages. So let's talk about how does
S2: that work? How can you, through the Fair Labor Standards Act,
S2: how can you hold your employer accountable for unpaid wages?
S2: What does that entail?
S1: Sure. So, yeah, and just to touch on what you
S1: just pointed out, I mean, the Fair Labor Standards Act
S1: has been it's been in existence since 1938. This is
S1: not a new statute. And, you know, I would say
S1: over the past ten years, you know, we've seen quite
S1: an uptick in these cases, both in the collective action
S1: context and individual cases. And as you pointed out, last year,
S1: we had about 6400 cases on file in federal courts
S1: across the country. We expect probably the same number in
S1: 2023 and maybe even more So I think there was
S1: there was a little bit of a lull due to COVID. Yeah,
S1: but I think it's ticking back up, you know, higher
S1: and higher every year.
S2: Why do you think we've seen a more recent sharp increase?
S2: Do you think that it is because there's more violations
S2: by employers or they think they can get away with
S2: it or just people are feeling a little bit more
S2: comfortable coming forward? What do you think that might be?
S1: Well, it could be. That's a loaded question. It could
S1: be It could be a lot of things. You know,
S1: it could be employers trying to find a way to
S1: save a buck. It could be, you know, as most
S1: people have heard in the news, there's wage disparity now that's,
S1: you know, becoming a bigger and bigger gap, it seems like,
S1: every year. And so some people are getting fed up
S1: with how much they're getting paid or how they're getting paid.
S1: They might be paying more attention to, you know, overtime
S1: violations or off the clock work or whatever it might be.
S1: It could be any number of things. It could also
S1: be more attorneys, you know, looking to file these kinds
S1: of cases. Yeah, I'm not really sure. But, you know,
S1: certainly the numbers stand for themselves. These cases are being
S1: brought and they're being brought every day.
S2: Yeah, there's. I mean, that's death, taxes and lawsuits. It's
S2: just part of what happens in our society. And United
S2: States is pretty litigious in general. And I'm sure there's
S2: ways to to avoid this or, you know, obviously everyone
S2: tries to avoid this, but say you have a situation
S2: where you've noticed, you know, unpaid wages at work where
S2: you're not getting compensated for some of the hours that
S2: you you have worked. Do you? What's the next step?
S2: What would you recommend for someone to do at that point?
S3: Sure.
S1: Yeah. So, you know, if an employee recognizes at work
S1: that in some way or another, they're not being paid correctly,
S1: whether it be off the clock work or the employer
S1: is just not calculating the the wage correctly or just
S1: flat out and not paying the employee what they're supposed
S1: to be paid. It's always an awkward issue to raise
S1: with the employer, right? Like, you know, we get that
S1: all the time when when clients call in, you know, hey,
S1: don't think I'm being paid correctly. I'm afraid to tell
S1: my boss about it. I'm afraid that what they might do,
S1: you know, I might be I might be fired, I
S1: might be demoted, I might be ridiculed, whatever it might be.
S1: We get that a lot. You know, there's a lot
S1: of a lot of people who are concerned about bringing
S1: unpaid wages up with their employer. And I bet the
S1: number one question I get from clients or potential clients is,
S1: what about retaliation? I'm worried my employer is going to
S1: retaliate against me if I if I complain or make
S1: a stink about this. Um, and so we get that
S1: all the time. And it's important for people to understand
S1: under the Fair Labor Standards Act, there is an anti
S1: retaliation provision built into the statute itself, which basically says
S1: if you complain to your employer about unpaid wages or
S1: if you file a lawsuit or if you testify in
S1: a in a wage, an hour case of any kind,
S1: even if you're not in the case, your employer is
S1: not allowed to retaliate against you under the law. And
S1: if they do, there's a mechanism for the employer to
S1: I'm sorry for the employee to go after the employer for,
S1: you know, for that, whatever that might be, whether that's
S1: a wrongful termination or just a retaliation claim itself. There
S1: are built in protections for employees. If they do raise
S1: this as an issue with your employer.
S2: I think that that is a critical component of this
S2: legislation because if you don't have that in there, you
S2: would not see as many cases. In my mind, there's
S2: just no way. And that is such an important thing
S2: to know, to ease the mind of a plaintiff or
S2: someone who is thinking about bringing an action that you
S2: are protected. You do have that protection that a lot
S2: of people just don't think you have. And I think
S2: that culturally speaking, we have this mentality where you just
S2: keep working, keep grinding, keep going and don't complain. And,
S2: you know, it's a very old school mentality of how
S2: things work. And I feel like we're kind of turning
S2: the the corner here with this new generation, especially during COVID,
S2: that they are there's a lot more workers who are
S2: standing up for themselves, standing up for the rights. And
S2: I agree that we're probably going to see an uptick
S2: even more in these labor issues because bosses and and,
S2: you know, management tend to be a little bit more
S2: old school and maybe slow to adjust. So having those
S2: having that ability to have a resolution protection from retaliation,
S2: I think it's such a critical component in the whole
S2: process of bringing an action. And so I guess. If
S2: you have this ability to be compensated or have some
S2: kind of protection for retaliation, a lot of people might
S2: think that it's very expensive to hire an attorney, and
S2: it can be. But there's a lot of ways to
S2: make this work. Depending on your situation, depending on the violation.
S2: So what are your thoughts about when someone says, you know,
S2: I don't want to hire an attorney because it's just
S2: so expensive and I don't want to pay out of pocket,
S2: you know, $100,000. I can't afford that. I'm sure you
S2: get that thought a lot or that said to you
S2: a lot.
S1: Yeah, of course. And just to piggyback on one other
S1: thing you said, you know, I think you're right. Nowadays.
S1: I mean, when I was when I was before I
S1: went to law school and I was working and and
S1: a lot of people that are my age, you know,
S1: if you complain about wages at work, you probably would
S1: get the response, well, just suck it up. And this
S1: is how it is. And, you know, your complaints would
S1: often just not be even addressed in the first place.
S1: And I think you're right, We're seeing a willingness now
S1: from younger generations to actually say, you know. This isn't right.
S1: And they're more willing to put their foot down and
S1: stand up and and say, this isn't right. Think we're
S1: seeing that for sure with, you know, our clients. You know,
S1: the younger they are, it seems that the more willing
S1: they are to stand up to corporate America and and
S1: the employer. Um, so, you know, going back to your
S1: immediate question, though, you know, when those complaints are not
S1: addressed by the employer and we get a phone call
S1: or an email from a potential client, also one of
S1: their first questions is how much is this going to
S1: cost me? And and the answer to that is not much.
S1: The Fair Labor Standards Act itself, in addition to providing
S1: for anti retaliation, it also provides that your attorney's fees
S1: and costs are supposed to be paid by the employer
S1: and on a settlement or a judgment against the employer,
S1: the payment of your attorney's fees and costs are actually
S1: covered and they're mandatory to be paid by the employer
S1: under the statute. So, you know, contrary to what people
S1: think and maybe what a lot of people think about
S1: lawyers in general is you don't always have to pay
S1: them by the hour at these hourly rates. A lot
S1: of times statutes like this will cover their attorney's fees
S1: for them.
S2: Yeah. And I think that that is a very common thing.
S2: If you watch suits, you'll see, you know, like Harvey Specter.
S2: I used to love that show, too. And then it
S2: just got a little bad towards the end. But Harvey
S2: Specter starts off and he's, you know, $1,000 an hour
S2: or something like that. And I actually was just following
S2: there's a case out in England with one of the
S2: soccer teams who has made some kind of violations, and
S2: they are hiring like the top lawyer in the UK
S2: charges £80,000 a day a day. And I thought, wow,
S2: I would love that job because that is well, that's
S2: a nice, nice living, but this is not that type
S2: of situation. Obviously. This is a lot different and we're
S2: not dealing with these these types of violations, especially that
S2: is so specific. But I just I saw that yesterday.
S2: I figured I'd add that in because I just found
S2: that to be amazing. And I definitely am a lawyer
S2: in the wrong country. £80,000 a day is just amazing.
S2: So anyways, yeah, that is a nice thing. A nice
S2: component as well that someone doesn't have to come out
S2: of pocket because I get this a lot too, in
S2: my practice where you know, there are certain situations where
S2: people feel aggrieved and they don't necessarily have the money
S2: to do anything about it, which is again, part of
S2: that catch 22 where you don't want to complain because
S2: you might get your hours cut and you can't afford
S2: that in the first place.
S1: Right. And, you know, add on top of that, most
S1: of the people who reach out to us on these
S1: cases are usually low wage workers. Right. These are usually,
S1: you know, people who are making an hourly wage. And
S1: sometimes it's just above the minimum wage. For example, here
S1: in Michigan, the minimum wage is now $10.10 an hour.
S1: So if you have somebody who's making $11 an hour,
S1: you know they're not going to be able to pay
S1: an attorney. Yeah. So that's the whole reason that the
S1: statute provides, you know, for the payment of attorney's fees. So,
S1: you know, these these lower wage workers can have access
S1: to the justice system and access to attorneys who are
S1: actually willing to step up and file a federal lawsuit
S1: if they're owed $500. You know, normally, unless that protection
S1: was in the statute, you know, you would not see
S1: 6400 cases filed in a year like we're seeing.
S2: Yeah. And that's such a it's such an interesting thing, too,
S2: because I feel like this all kind of goes in
S2: this one big circle of, you know, I can't afford
S2: to say something, but you technically can't afford not to
S2: say something as well too, because it's just going to
S2: keep on happening. It will probably get worse. And when
S2: you do say something, you have those protections. And I
S2: think that's probably the biggest thing in this show that
S2: we really need to get out to everyone is that
S2: you still have protections if you say something. And so
S2: many people don't know that and you don't have to
S2: come out of pocket for $100,000. It is something that's
S2: all incorporated with which, you know, obviously very specific. And
S2: they need to if someone has something like this, they
S2: have to call you. So you need to call Summer
S2: Schwartz and or go to the website Summers pc.com MERS pc.com.
S2: And I am joined by Jesse Young and we're talking
S2: about a day in the life of a plaintiff and
S2: we've kind of jumped over a couple different things here
S2: but let's get back into what it's like when we're
S2: starting off as a plaintiff. So if you you've noticed
S2: that you've had these unpaid wages at work and what's
S2: the next thing you do? So you, you consult, you
S2: hire a law firm, you go to summer. Schwartz You
S2: talk to you, Jesse, about this. And how does that
S2: how does that go? What do people experience at that point?
S1: Yeah. Yeah. So typically when you reach out to our firm,
S1: what typically happens is we have we have quite a
S1: bit of staff that are very attentive, very thorough. We
S1: rely on them extensively. The attorneys do to to do
S1: this work. And one of the first people you're going
S1: to speak with when you contact our firm, we have
S1: an intake specialist who will, you know, ask a whole
S1: bunch of questions about your situation, try to get a
S1: feel for what the situation is. And she will ask
S1: for documents such as pay stubs or time records, things
S1: of this nature. And then once she gathers all that
S1: information that information then gets forwarded to the attorneys for review.
S1: You know, once we have it in our hands as
S1: the attorneys, we we do meet pretty regularly every week
S1: or two. And we review all the the new potential
S1: cases that have come in. We sit down in roundtable,
S1: you know, which cases are interesting, which cases have merit,
S1: which ones may not have merit. And we use those
S1: meetings to then make decisions on which cases we should take,
S1: in which cases we can't take.
S2: Yeah. And I know just in my firm, having a
S2: good front line for people calling in is so vitally
S2: important because we want to make sure that we're not
S2: wasting someone's time, we're not wasting our own time. And
S2: I imagine your intake specialist gets asked a lot, you know,
S2: do I have a good case? Do I? Am I
S2: going to win? Is this a clear cut violation or
S2: something of that nature? And and just for everyone out
S2: there who is thinking about calling a law firm, usually
S2: the first person you talk to cannot give legal advice.
S2: They you probably aren't going to speak to an attorney
S2: right off the bat. And by law and ethical standards,
S2: you are not allowed to give legal advice unless you
S2: are an attorney. And we have to be very careful
S2: about how we talk when we're speaking to someone to.
S2: So this intake specialist, I imagine, plays a vital role
S2: in getting and extracting the most important information. But they
S2: also have to have a soft touch too, because this
S2: is a very delicate situation. And so after the fact,
S2: once you do the intake, all the attorneys are talking
S2: about it. We figure out or you figure out what's
S2: going to be your your best case or do you
S2: have kind of a hierarchy of cases that you want
S2: to move on to next? Or if one violation goes
S2: away or one potential case goes away, you have one
S2: that's on deck to be pushed forward. Is it kind
S2: of a situation like that or is it just these
S2: are our prime cases and we want to focus just
S2: on these and have to kind of refer the other
S2: ones out?
S1: Well, as a combination of that just and it's it's
S1: you know, we obviously keep up on the laws and
S1: there's new opinions being issued every day by the courts,
S1: by the Supreme Court, by the courts of appeals. And
S1: we're constantly monitoring what's going on in the wage and
S1: our field. And so depending on, you know, what's going on,
S1: we may identify a new set of cases that we
S1: want to pursue that we think is interesting that we're
S1: seeing a lot of maybe if we see some trends
S1: starting to come in the door, we start to focus
S1: on those a little more. But there's also, you know,
S1: your your what I'll call the tried and true wage
S1: in our cases. You know, you're off the clock work,
S1: your regular rate calculations. And there's just so many different
S1: kinds that are always going to be in play and
S1: a problem in the workplace. And so, you know, the
S1: best way I can answer that is, you know, we
S1: see all kinds of different cases. We don't particularly focus
S1: on any one type of case. There might be some
S1: trends here and there, but if somebody notices they're not
S1: being paid correctly, they should reach out for sure and
S1: just have their case evaluated. And we're pretty good at
S1: spotting cases.
S2: Yeah. Imagine you have, for lack of a better term,
S2: you know, these kind of slam dunks where it's just
S2: a clear cut violation. There's no ifs, ands or buts
S2: about it. You're not going to go to a jury.
S2: It's going to just be, you know, an easy not easy. Obviously,
S2: they're never easy, but it's just a clear, more clear
S2: violation that allows for a more clear either litigation or settlement.
S2: Do you have anything that comes to mind of just
S2: more like, I like the over-the-top egregious case? Do you
S2: have anything that is just such a clear cut violation
S2: that you almost kind of laughed from it? Anything like
S2: that come to mind?
S3: Oh, sure.
S1: Sure. We just filed one this morning. And so the
S1: one we filed this morning, it's called a regular rate violation.
S1: And essentially what happened in that case and we have
S1: a number of these kinds of cases, but the employer
S1: is supposed to take a shift premium or a shift
S1: differential and calculate that into the overtime rate. And this
S1: is all you can just look at the pay stubs
S1: themselves and figure out if this is a case or not.
S1: And many times the employer gets it wrong and simply
S1: does not make the right calculation and and the employee
S1: is not getting the proper amount of overtime paid to them.
S1: That's the one we just filed this morning. Um, you know,
S1: we see those cases a lot. The other one that
S1: you kind of mentioned that I kind of laugh when
S1: I see it and that's in this case, that's where
S1: somebody's working more than 40 hours in a week. Let's
S1: say they work 50 hours in a week and the
S1: employer is just paying them their regular base hourly rate
S1: for the full 50 hours. They're not even trying to
S1: pay him time and a half for their overtime. And again,
S1: you see that right on the pay stubs. Yeah. And so,
S1: you know, when you say, you know, you see one
S1: that kind of makes you chuckle. Yeah. I mean that's
S1: that's the classic. And we've had a number of those cases,
S1: to believe it or not. There's employers, sometimes big employers
S1: that just totally screwed up. So, yeah, they're out there.
S2: I guess this kind of I have a well, as
S2: we're talking about filing a lawsuit and how it works,
S2: my thought immediately as a lawyer would be you're going
S2: to have a lot of employers who will try and
S2: bring into a lawsuit, maybe their their own company or
S2: a secondary company that does their their payroll. A lot
S2: of companies do not do payroll in-house. Most companies don't,
S2: I would say. And they have a payroll company that
S2: helps out with this. So the first thing I would
S2: think is if anyone came to me, any of my
S2: employees came to me and complained about hourly wages, I
S2: would fix it right away. That's just I like you know,
S2: as an attorney, we are very adverse to lawsuits against ourselves.
S2: So we always want to fix things and make things right.
S2: And I just want to do that as a person
S2: as well. But I imagine that a business in general
S2: would say, well, no, my payroll company screwed that up,
S2: and I don't think that that's my fault. Is that
S2: a pretty common thing when we are starting to see
S2: lawsuits being filed?
S1: I wouldn't say it's extremely common. I think I've I've
S1: run into that argument before. But, you know, typically, in
S1: my experience anyway, the payroll company is typically just paying
S1: the employees the way the employer is telling them to
S1: pay them. Yeah. And usually they're relying on the employer's
S1: information and records to pay the employee. So, you know,
S1: I've heard that argument in the past. Usually it doesn't
S1: hold up. Yeah. When we actually examine it. And so, yeah,
S1: I'm not sure that that's a great defense for an employer.
S1: It does come up from time to time. Sure.
S2: Yeah. So when we're we're filing lawsuits, say we get
S2: past this initial consultation. You meet with the intake specialist
S2: and now we decide, you know what? Summer Schwartz says
S2: you have a good case. If you want to take
S2: it further, we're happy to start with it. And myself
S2: as the plaintiff, I say, okay, let's do it. What
S2: happens next?
S1: Sure. Yeah. So once we identify a case as something
S1: we want to take on, what typically happens is our
S1: paralegals will get involved at that point. And we have
S1: you know, every law firm in America has retainer agreements.
S1: So we have our own, of course. And so we
S1: send that out to the client. Um, the client will
S1: take a look at that, ask any questions they have.
S1: And once we have that retainer agreement signed, that gives
S1: us the green light to go to work, right? We're
S1: now officially hired. We can start drafting the complaint. We
S1: can start really digging into the case and get the
S1: lawsuit ready to file. Um, you know, as part of
S1: that whole process, we've got to figure out what claims
S1: are we actually bringing? You know, do we have the
S1: fair labor standards that claim? Do we have any state
S1: law claims that are similar that need to be brought
S1: and that, you know, that all depends on where the
S1: employee worked typically. And, you know, so we'll evaluate that.
S1: And then we also need to evaluate at the same time,
S1: you know, where are we filing what makes sense or
S1: where do we have to file? Right? And that's usually
S1: the state or the federal court where the employee actually worked.
S2: It's so interesting to in this this is something I
S2: wanted to bring up about what you do there. A
S2: lot of people don't know or just fail to recognize
S2: that there is a vast amount of federal law. And
S2: then you have to also have your state law. And
S2: compliance in both is a rather tricky thing. And so
S2: if you have a situation like this where you can
S2: file in federal court or state court or both even,
S2: you have to be very well versed in so many
S2: different things that come up. And I my practice estate planning,
S2: I'd just deal with state court. I don't do any federal,
S2: which is, you know, feel very blessed for that. But
S2: at the same time, having a a federal standard and
S2: in most of the states you said kind of mirror
S2: the federal legislation. But there's got to be nuances here
S2: and there. So what would be the advantage? Just, you know,
S2: a quick off the top of your head, if you could,
S2: for filing in state versus federal is one easier to navigate?
S2: Is one a little bit more expeditious and quicker, or
S2: are they both kind of the same?
S1: Well, it's it depends what state you're in. Yeah. I
S1: think the biggest driver of of the answer to that
S1: question is going to be the state statute that you're
S1: looking at. I mean, some state statutes provide greater protections
S1: than the Fair Labor Standards Act. For example, California is
S1: the notorious employee friendly state. Right. And so, you know,
S1: when you file a complaint in California, you're always, you know,
S1: looking at the state claims in California, because there's so
S1: many of them versus just the one federal claim. And so.
S1: There's other states that are similar to that. You know,
S1: I think we filed quite a few in Nevada and
S1: Illinois and some other states that are, you know, the
S1: state statutes are just more protective than the federal statute.
S1: And so, you know, that's probably the biggest driver of
S1: the answer to that question, I think.
S2: Okay. Yeah. So more state specific. And that's a typical
S2: lawyer answer for everyone listening to. It depends.
S3: Well, let.
S1: Me let me add to that, too. If we're in
S1: a state because some state statutes, like, for example, in Michigan,
S1: the overtime statute. Almost as identical, if not identical, to
S1: the Fair Labor Standards Act. So when you bring a
S1: a claim for overtime in Michigan, you you really can't
S1: bring the state statute because it's preempted by the federal statute. Yeah.
S1: So yeah. So in Michigan, if you're filing an overtime claim,
S1: unless there's some strange circumstance, you're going to be filing
S1: in federal court.
S2: Yeah, that makes sense. Yeah, the it depends thing. I'm
S2: sure if you had a dollar for every time you
S2: said that, you probably be a multimillionaire. That's a such
S2: a lawyer like answer. But we have to say that
S2: to as I mentioned, we have to be very careful
S2: about what we say because context matters with our response
S2: for everything that we say.
S1: And it really does depend mean. Yes, it is absolutely true.
S1: It depends on a lot of things.
S2: It's not a dismissal. Just that's that's the main thing
S2: to know is that we are not dismissing or trying
S2: to avoid what you're saying, but it actually does depend.
S2: So yeah. So anyways, back to kind of what we're
S2: talking about. And just to recap, we're talking about a
S2: day in the life of a plaintiff of a lawsuit
S2: being brought against your employer. And I'm joined by Jesse
S2: Young of Summer Schwartz, and we're going to give out
S2: all the information of how to reach out to some
S2: Schwartz in just a little bit as well, too, because
S2: I'm sure there's a lot of people who are thinking,
S2: all right, I'm with you so far. We're we've got
S2: to the the point where I noticed that I don't
S2: have some of my wages on my paycheck. I'm ready
S2: to hire a law firm. I've talked to the Summer
S2: Schwartz intake specialists and ready to file a suit when
S2: we get to a point now where we're looking at
S2: this and we're saying, okay, should I just be going
S2: on my own or should I be filing as a
S2: class like a class action? And I you know, I
S2: remember going over class actions in pro back in law
S2: school and it gives me a little bit of PTSD
S2: talking about this. So let's let's go easy if we could.
S2: But it's I'm sure this is a very common question
S2: and it's something you have to evaluate which could change
S2: the whole dynamic of of the way the case goes.
S1: Oh, for sure. So we always we always look at
S1: whether the case should be an individual case or a
S1: class or collective action. And, you know, the difference between
S1: a class action and a collective action is a real thing,
S1: and that's probably its own podcast. So I'm not going
S1: to bore everybody with that explanation, but it's there similar things.
S1: But so sometimes we have potential clients who say, Look,
S1: this is only happening to me. I'm not aware that
S1: this is happening to anybody else. This is, you know,
S1: my situation and I want to go forward as an individual.
S1: And and that's fine. And that's how we will tackle
S1: the case. Other times we'll have potential clients come to
S1: us and say, Hey, this is happening to me. I'm
S1: not getting paid correctly for whatever reason. And by the way,
S1: this is also happening to 20 of my best friends
S1: at work. And so think it's happening to everybody. And
S1: so in that situation, it might make more sense to
S1: bring the case as a collective action or a class
S1: action on behalf of the whole group of people that
S1: are being affected. Yeah. And the way these cases work
S1: is you can just have one plaintiff file the case
S1: and move forward as a representative action. And that one
S1: plaintiff would then represent all of the workers who are
S1: similarly situated at the company. In other words, if they're
S1: all being paid the same way or being paid incorrectly
S1: in the same way, then that case can proceed as
S1: a class or collective action. So we're always evaluating that
S1: as well. You know, not only what claims or what court,
S1: but how is this case going to proceed? Is it
S1: going to be an individual case or a class action?
S2: So I think that just as an example of what
S2: it might be like, if I come to you and
S2: I say, Jessie, listen, I look at my my paycheck
S2: and you say, Justin, do you think anyone else is
S2: having a situation like this where they're not being paid?
S2: Would you send me back to some of the other
S2: employees to ask or would you say, you know, let's
S2: let's reach out to them? I know that, ethically speaking,
S2: where we have some limitations of what we're allowed to do,
S2: but if we're trying to investigate whether it's a class
S2: or a single situation, what would be the next step there?
S2: Because I would find that pretty interesting. As the plaintiff,
S2: do you send me back out to us and start
S2: gathering names and information and asking people or are you,
S2: you know, kind of facilitating these questions on your own?
S3: Right.
S1: So that's a that's a great question. So typically. When
S1: a potential client says, Hey, this is happening to me
S1: in 20 of my best friends or whatever, um, they will,
S1: you know, offer up other people that want to speak
S1: with us. And so, you know, we'll speak with them too,
S1: and collect their documents. And, you know, if it's appropriate,
S1: we'll have them join the case at the outset. Yeah. Um,
S1: you know, other times somebody will come to us and say,
S1: you know, I don't know that this is happening to
S1: anybody else, but it's happening to me, and I think
S1: it's probably happening to everybody else at the company just
S1: the way, you know, from what I've seen in my
S1: experiences and working there. Now we have as if if
S1: we're going to bring the case as a class action
S1: on that basis. And we think this is a company
S1: wide practice and it's a company wide problem. As class
S1: counsel for the case, we actually have a duty to
S1: investigate whether this makes sense as a class action. So
S1: we might in certain circumstances ask the client, Hey, can
S1: you talk to one of your coworkers and have them
S1: speak with us just about, you know, what their experience is,
S1: that as a company, we just want to ask them questions,
S1: investigate what's actually going on. If their experience is similar
S1: and that gives us the confidence to say, Yeah, this
S1: should be a class action and you know, we can
S1: go ahead and take our one plaintiff and file the
S1: case as a representative action and we'll have the confidence
S1: to know that we think this is actually happening to everybody. Yeah.
S3: So.
S2: Yeah, yeah. So I was going to say that that
S2: brings into a completely different situation where you have the
S2: duty to inform people and let them know that there
S2: could have been violations that they don't even know about.
S2: So you're able to reach out to them. And I
S2: remember I've gotten these, um, class action placards that say,
S2: you know, you were part of this group that, you know,
S2: you could be owed X amount of dollars for this violation. Um,
S2: and that, that makes a lot of sense too, because
S2: it's kind of, as an officer of the court, I
S2: guess the court's duty here is to and especially that
S2: legislation is to we want to make sure that we
S2: are are compensating people who have been aggrieved through the
S2: Fair Labor Standards Act. And and so it would be
S2: in the best interest of the court of the legislation
S2: of the, you know, of the state or federal government
S2: to make sure that everyone knows that they they could
S2: be qualified for something like this, too. Oh, absolutely. Yeah,
S2: that that's interesting.
S1: Yeah. And so so one of the things one of
S1: the first things that we do with our client in
S1: a in a wage in our collective action or a
S1: class action is we will file a motion with the
S1: court and we will ask the court, hey, we think
S1: we need to send a notice to everybody who works
S1: at the company or who has worked in the company
S1: for the past three years. You can go back three
S1: years under the statute. And, you know, Judge, we think
S1: we ought to be able to send out this notice
S1: to all the employees, let them know that this case
S1: is pending, give them a chance to join the case
S1: if they want to. And as part of that motion,
S1: the representative plaintiff, the original person who came to us,
S1: will need to work with us to to create a
S1: declaration or an affidavit that we can submit to the court.
S1: And that affidavit basically tells the judge, Hey, I'm Jane Doe.
S1: I've worked at the company for X number of years.
S1: This is what I've seen. This is what's happening to me.
S1: I think it's happening to other people based on what
S1: I've seen. And that affidavit gets filed with a motion
S1: in support of the motion and where we ask the
S1: judge to send out the notice. Yeah. So that declaration
S1: takes a little bit of effort from the client to
S1: help us draft that declaration. And we've got to make
S1: sure it's it's very accurate factually. And it's not it's
S1: not based on speculation. Right. This has got to be
S1: something that's personal knowledge to our client, right?
S2: Yeah. That makes a lot of sense to and it's
S2: in the best interest of the individual and all others
S2: who have been aggrieved to bring forward a class action.
S2: I at least I imagine I'm maybe this is more
S2: of a question when you have people who are claiming
S2: that an employer has done something wrong, that should, in
S2: my mind, hold a lot more weight than just one
S2: person who's making a claim against an employer. Is that correct?
S1: That's absolutely correct. So, you know, I always say there's
S1: power numbers, right? Everybody's heard that term. And when you
S1: show up at the courthouse with 20 people and they're
S1: all claiming that they're not paid correctly for the same
S1: reasons or very similar reasons, that's that holds a lot
S1: more power than just one person showing up and saying
S1: they want to start a class action. Yeah, Not to
S1: say that that's not powerful, but when you have 20
S1: people saying the same thing, yeah, in my experience, the
S1: employer's got to take that much more seriously. Yeah. Than
S1: they otherwise would.
S2: When there's, when there's smoke, there's fire. And obviously it
S2: doesn't mean that someone is guilty, but it's. When you
S2: have someone, a lot of different people making the exact
S2: same claim, well, that's something you probably want to investigate
S2: and get into it. And once you get into this
S2: process now say we we are certified as a class
S2: or even as an individual. And what's the next step
S2: once that say, actually, let's let's go back to Jane Doe.
S2: And she's filing this motion with her affidavit, speaking about
S2: what she's seen in her workplace and what the employer
S2: might be doing, What happens next? Say we get certified
S2: as a class. Do we get we get on calendar
S2: and then go straight to some kind of mediation or
S2: are we going to try and work things out? Or
S2: is this like the collection process of all paperwork? How
S2: does it work from there?
S1: Sure. So if that motion gets granted and the judge
S1: allows us to send out the notice to everybody, usually
S1: there's a 30 or 60 or maybe even 90 day
S1: period for employees at the company to join the case.
S3: Okay.
S1: And so all they have to do is submit this
S1: one page form and they join the case. And at
S1: the deadline, you'll know how many people are in your case.
S1: And so once you know how many people are going
S1: to be in the case moving forward, then that makes
S1: sense to go ahead and create a case schedule for
S1: the case. And so what happens is the court will
S1: set a scheduling conference. The client may or may not
S1: need to attend that with us. Usually not, but sometimes.
S1: And you know, we'll work with the other side, with
S1: the attorneys for the company and create some kind of
S1: a discovery schedule for the case to proceed with discovery.
S2: And so this is the part where you see on
S2: TV and movies where you have boxes and boxes of
S2: documents being brought in, and that's where you and your
S2: staff at Summer Schwartz are going to start looking through
S2: all the paperwork and trying to find the violations, get
S2: a good, clear cut understanding of all the evidence, and
S2: really present your case based on that. Is that correct?
S1: Yeah, that's correct.
S3: And so this is.
S1: Really where the plaintiff or our client has to do
S1: the most work in the case. And the discovery process.
S1: And so the way this typically works is you'll have
S1: a couple forms of discovery. You'll have what we call
S1: written discovery, and then we'll have depositions and. Talking about
S1: the written discovery for a moment. So written discovery basically
S1: is the parties chance to ask each other questions and
S1: request documents and other information through written papers. And so
S1: there's a couple of things. One is the interrogators and
S1: what an interrogator is, if you don't know, is written
S1: questions sent to the other side that they have to
S1: answer under oath. And so what happens is the employer
S1: will send 2025 interrogatories to our client and our client
S1: is going to have to work with our paralegals to
S1: go through those questions and answer them to the best
S1: of their ability. And at the end, once we have
S1: all the answers how we like them and, you know,
S1: truthful and thorough, the client will then need to sign
S1: off on those interrogatories and swear that they're true and
S1: to the best of their knowledge, accurate. Yeah. And we
S1: also get a chance to do that with defendant, right?
S1: So we get to send a similar document to the
S1: employer with our questions and they have to do the
S1: same thing for us. So that's one piece of the
S1: written discovery and that's that's usually somewhat time intensive for
S1: the client, but it's not bad. Our paralegals are very
S1: good at making that a very efficient process, making it
S1: as easy as possible for our clients to get through that.
S1: It's really not too bad. And the second big part
S1: of the written discovery is the request for documents. And
S1: so of course we get to send requests for documents
S1: to the employer requesting pay stubs, time records, policies, those
S1: kinds of things. And then the employer will likewise get
S1: to send a request for documents to our clients. And,
S1: you know, again, our clients will work with our paralegals
S1: to pull together any documents that they have, which, you know,
S1: usually in my experience is not nearly a complete set
S1: of documents, at least compared to what the employer has.
S1: But we have an obligation to produce those. So the
S1: our client will be, you know, asked and expected to
S1: go through, you know, all the places where they could
S1: have these documents and at least look for them and
S1: then produce anything that they have to our office. And
S1: then we'll go ahead and send those over to the employer.
S2: I strive to be organized, but I'm not the most organized.
S2: Like what this what you're explaining there, I imagine you
S2: need someone who is extremely organized and can kind of
S2: catalog everything in a very nice, neat and orderly way. Um,
S2: and I'm very lucky at my firm that I have
S2: staff that help me with that as well too, and
S2: also my wife. But it's such an important thing to
S2: get all these things because this tells the story. This
S2: is the this is where in my mind where everything
S2: comes from, where the basis of the litigation comes from.
S2: And it really tells the story of the case. And
S2: where you come in after that is to explain here
S2: is all the evidence of the violations. And this is
S2: why we're going to win. And so you need to
S2: have that kind of organization to make sure that it
S2: does explain exactly what the employer did. But I imagine
S2: it's just so much paperwork a lot of the times
S2: that it just kind of makes your head spin.
S1: It certainly can be depending on the size of the
S1: employer and the size of the the class. You know,
S1: some of these cases can be very, very complicated and
S1: very document intensive. And so, you know, thankfully at our firm,
S1: we're blessed to have a great staff. We've got numerous paralegals,
S1: legal assistance, intake specialists, associate attorneys, partners. We have a
S1: whole team of people that, you know, take care to
S1: go through all these documents and make sure we understand
S1: what's going on in the case, make sure nothing gets missed. Um,
S1: you know, also to help our clients, you know, sometimes
S1: we have clients that have lots of documents. And so,
S1: you know, our staff is very helpful in helping our
S1: own clients, you know, sort through their own documents so
S1: we can produce, you know, what's relevant and and responsive
S1: and discovery. And so. You know, you really do need
S1: a good team of people to go through this process,
S1: including the interrogatories and the request to produce and think
S1: we have that.
S2: So at this point, Jesse, once we get to the
S2: written discovery, we do the interrogatories. We answer all these questions.
S2: We move on to the next step, which is depositions.
S2: Is that right?
S3: Right.
S1: So once the parties have all the written discovery in place,
S1: then we can move on to depositions. So just very quickly,
S1: depositions are. It's an event in the case where you
S1: sit down and actually get to ask the other side
S1: questions in person. And that person or the witness is
S1: under oath while you get to ask these questions.
S3: And so.
S1: You know, from from our perspective, we typically like to
S1: take depositions of the company employees, including, you know, we
S1: might get a company representative to come in and speak
S1: as to the policy and practices that the company. We
S1: might get some supervisors in, ask them questions about the
S1: actual day to day activities, you know, on the floor
S1: or in the office or whatever the case might be.
S1: And sometimes we'll even bring in the people or the
S1: payroll staff and ask them questions about how they do
S1: payroll in the company. And, you know, these are very
S1: important pieces of the case because this is your chance
S1: to actually ask the employer under oath certain questions about
S1: the case. And, you know, you're making a record of
S1: that testimony under oath so that, you know, if you
S1: go to trial in the case, you know what the
S1: other side's going to say at trial. And if they
S1: deviate at trial, you'll have this other record you can
S1: kind of point back to and and ask them why
S1: their answers are different or whatnot. Yeah.
S2: So you have it's kind of like a three part
S2: thing for trial or at least two parts where you
S2: can say, all right, I have these interrogatories and you
S2: can use those in the deposition to say, Well, why
S2: did you answer this way? And let them kind of
S2: expound on that. And then you get into trial where
S2: you can have a very similar situation, where you have
S2: maybe someone who's contradicting themselves on an interrogatory or the deposition.
S1: Right. All right. And the documents, you know, we'll put
S1: documents in front of them in the depositions. Have them
S1: answer questions about the documents. And it has the same effect,
S1: you know, at trial. You know, their answers are going
S1: to are going to be relevant when it goes to trial.
S3: Yeah.
S1: And so, you know, our clients are very we rely
S1: on our clients a lot for those depositions. So, you know,
S1: our clients are going to be in touch with us
S1: to talk about, you know, maybe some of the questions
S1: we should be asking about the company and how it operates.
S1: And maybe the supervisor was your direct supervisor. And we're
S1: going to want to know everything we can know about
S1: that supervisor from our own client. So our clients are
S1: going to be involved to some extent in the deposition process,
S1: and we're going to have to talk with them and
S1: get as much information as we can. Yeah. And you know,
S1: on the flip side of that, and my partner, Jason Thompson,
S1: we'll talk about this in the next part of this podcast.
S1: Our own client has to sit for a deposition, right?
S1: And so, you know, there's a whole preparation for that
S1: and a whole process for that. And in my opinion,
S1: the plaintiff's deposition is probably the most important event in
S1: the entire case. So I'll let Jason go into that.
S1: I won't steal his thunder, but, you know, Jason will.
S1: We'll be on with you think, in the next week
S1: or two to talk to you about that and I'll
S1: let him explain that and how that works. But, you know,
S1: a very important part of the discovery process for sure.
S2: Yeah. And we're not even. What would you say this
S2: is at this point? This is maybe halfway through the
S2: process or not even halfway through, because so many different
S2: things can happen that it could really swing the case
S2: one way or another, especially if we go to trial.
S1: Sure. Yeah. Yeah. The depositions, you know, are usually a
S1: turning point in the case. You know, that really opens
S1: up everybody's eyes as to what the testimony is going
S1: to be for trial. Right. So, you know, at that point,
S1: you have a chance to resolve the case one way
S1: or another. Um, but again, I think Jason's going to
S1: speak with you about that stuff and I'll let him
S1: do that.
S2: There's there's so much information that, you know, being only
S2: halfway through, I'm really excited to hear the second part
S2: of this and go over the second part of this.
S2: On how how how it is to be a plaintiff
S2: in a lawsuit against your employer and day in the
S2: life of the whole process. And when Jason Thompson is
S2: coming up on the next episode in a couple of weeks.
S2: So we're going to be talking about not just positions,
S2: but also mediation and and how the case can ultimately
S2: play out and hopefully avoid trial, because that would be
S2: ideal for most people. But sometimes it ends up going
S2: to trial. And we need all of this front end
S2: work to be done in order to ensure that you
S2: have the best chance possible at trial. So this is
S2: it's been a great, great and very informative show. Thank you, Jesse.
S2: Really appreciate joining us for to talk about all this information.
S1: My pleasure. It's very nice to speak with you today.
S1: I'm looking forward to coming back again sometime. Thanks a lot.
S2: Yeah, can't can't wait. Once again, my name is Justin
S2: Isaac and this is overdue Over time. Presented by Summer Schwartz,
S2: This has been a day in the life of a
S2: plaintiff Part one, and we are going to be speaking
S2: in a couple of weeks about a day in the
S2: life of a plaintiff Part two and how the rest
S2: of this case might actually come about. If you do
S2: have a claim, if you think you have a claim,
S2: you should definitely go check out Summer Schwartz at Summers
S2: PC som ers pc com for more information or to
S2: speak with one of those intake specialists that we were
S2: talking about. And hopefully if you do have a claim,
S2: you can talk to Jesse and figure out how to
S2: best be compensated, um, and take it from there. So
S2: thank you again for everyone who listened. Again, this is
S2: our second podcast of overdue overtime. My name is Justin
S2: Isaac and we'll see you in a.
S4: Couple of weeks.
S5: If you have comments, questions and show ideas, visit Sommer's PC. Com.
S5: Overdue overtime is produced at the IVC Media Lab in
S5: San Diego, California. Your host is Justin Isaac and Jessica
S5: Garcia serves as general manager, while Elias Ramos is the
S5: creative director. Lina Alvarez assists with production and Chad Peace
S5: is president and founding partner. Over time. This has been
S5: a presentation of Summer Schwartz on the oldest media network
S5: o+ Media.