WAGE AND HOUR LAWSUITS ARE GOOD FOR ETHICAL BUSINESSES

In my business, I help employees get paid what they were due by filing lawsuits against bad employers. Cases range in value from a few thousand to a few million dollars.

That being said, I am NOT an enemy to all businesses. Just to the bad ones.

When I file a lawsuit against a company for not paying overtime or minimum wages, a side effect on business is a leveling of the playing field for law abiding companies that pay legally acceptable wages.

By making bad employers responsible for underpaying their employees, I help the good employers do better. How? Well, if a weak company survives only by cheating its employees out of their wages, then my lawsuit will either make it go out of business, or make it less of a competitive threat when it has to pay up for past failures and pay legal wages in the future.

More often though, my efforts result in a positive change. It may be impossible for an employer to pay lawful wages and still sell products or services at the prices it was charging before it got caught cheating. Labor is usually a primary or secondary expense to a company. If the bad company’s labor costs were artificially low as a result of unlawful pay practices, then the new requirement of lawfully paid overtime and benefits will require a company to make a better product more cheaply, or to charge a price more in line with that charged by law abiding competitors.

My lawsuits provide another benefit to ethical companies: I cause the disclosure of the bad actors in the industry. If a company mistreats and underpays its employees, one can be almost certain that the cheater is chiseling or cheating its suppliers and customers. Potential customers take note too.

Nobody learns anything from silent, poisonous success. It is only when the ill effects of wage theft are revealed does an industry or custom change in a meaningful way, usually for the better.

By making sure employees are properly paid, I make bad businesses change or close, and I make good businesses look better. If you know anyone who is being unpaid or underpaid, either minimum wage or overtime, then let them know they can contact me. If they take action, then the business world gets better for every business.

Process to settle a filed FLSA claim.

Lawsuits claiming unpaid minimum wages and unpaid overtime are bread and butter for many attorneys. Nonetheless, the process for settling them seems clumsy and unnecessarily unique each time. 

 Under the FLSA and a growing volume of case law, the presiding judge has to approve any settlement of an FLSA claim, be it individual, collective under §216(b) of the Act, or as a class. A failure to get judicial approval can lead to the settlement being busted and unenforceable. It is rare, but not unheard of. 

 Usually when a judge has to okay something, it is public and viewable. This is particularly true when the statute upon which the claims and settlement are based is a remedial statute intended to protect the public. Judges tend to honor the spirit of the FLSA with some fidelity and the case law is similarly positive toward that spirit of remediation. However, many judges are willing to allow parties in FLSA unpaid wage cases to settle confidentially. After all a settlement is good for parties and courts alike. The matter is concluded satisfactorily and it is off the judge's docket. A win-win. 

Whether the settlement approved by the court is kept confidential really depends where the case is situated. Normal practice in federal court is to advise the court when a case has been settled before trial. The court will gratefully put on a conditional dismissal entry to the effect that the case is settled and dismissed without prejudice for sixty days. After that time has elapsed, the dismissal is converted to one with prejudice, i.e., never to be filed again. If in the sixty day period a party advises the court that an agreement was not finalized, or won't be, then the case is renewed on the court's docket. 

 This is usually a fine way to proceed. A deal is reached in principle, and the parties tell the court. Court is happy to delete the matter from its crowded calendar. Lawyers breathe easier knowing they will be getting paid after a short time haggling over release agreement details. In FLSA cases though, reporting a settlement before an agreement is approved can be a disaster. Not an end of the world disaster, but one that is fraught with procedural hiccups and a general cart before the horse vibe. It causes delays and uncertainty that nobody wants. I know. Trust me.

 It is error for parties to an FLSA case report to the court that a matter is settled when that settlement is based only on an agreement between counsel. To be SETTLED, the terms of the settlement have to be approved by the court. So telling the court that the matter is resolved and can be taken off the docket, before the judge has approved the terms of the agreement, puts the parties in the painful position of having a dismissed case, but an unapproved settlement. Now the parties have a case that reads as terminated on a federal judge's docket. And you know how intensely they pay attention to terminated cases. 

 Now the parties have to attract the judge's attention (and not their ire) to the settlement agreement. And even if the matter was well negotiated and all the parties are on board, the judge may not approve. Don't report an FLSA case as settled to the court based on counsel's agreement alone.

 If counsel reach an agreement in principle, but have to hammer out a confidential release agreement, then just wait. Do it like this: 1) Reach an agreement in principle; 2) file a joint motion to stay proceedings pending release agreement negotiations; 3) after reaching agreement on the release details, file a joint motion to approve the release/settlement agreement at the same time you present it to court confidentially, e.g., judge's chambers email; then 4) on judicial approval of the agreement and upon receipt of the settlement payment(s), the plaintiffs file their voluntary dismissal with prejudice. This process avoids the cart before the horse problem that rears up in FLSA cases prematurely reported as settled.

Some possible Constitutional Amendments

Proposed Constitutional Amendments

As I pondered Independence Day and saw that American approval of Congress and the Supreme Court had fallen to all time lows, I thought of some changes that may make the institutions less intolerable.  In no particular order:

Any two adults may marry as they choose and no legal benefit or privilege of that 

Marriage can be denied by any state, the federal government, or any agency.

Congress shall pass no law limiting the natural right of the People to procure, grow, cultivate manufacture or physically ingest any substance derived primarily from vegetation.

Congress may pass no law in respect of religion, and no court, judge, justice of the Supreme Court, agency, administrator, President, or Congressional body may accept any non-secular or religious belief, faith, opinion, teaching, rule or dogma as fact or evidence for any purpose whatsoever.

A person may serve as a member of congress, meaning either the House of Representatives or the senate, for no more than eight cumulative years in the member's lifetime.

Justices of the US Supreme Court may serve on the court for no more than eight cumulative years in a lifetime. 

From the effective date of this Amendment, Justices of the Supreme Court, Senators and Representatives alike shall receive from the US treasury an annual salary equal to the per capita income in the United States as measured by the Bureau of Labor Statistics in the year that member of Congress is elected to office, or the Justice is appointed.  Adjustments to the calculated pay up or down shall be made every two years during the member's or Justice's 's service. The human constituents of a representative's district, or in the case of a Senator or Justice, his or her resident state's human residents, may pay the member additional compensation, but only upon full, unlimited, contemporaneous public disclosure of the payor, the dates of payment and the amount of payment. No other payment or consideration of any kind can be made to any member of congress by any other person or corporation, and the District of Columbia shall not be considered a state. 

In response to the decisions by the US Supreme Court in Citizens United and Hobby Lobby, the People say that those decisions were wrong, are wholly rejected, and retroactively to the date of the Citizens United decision corporations are neither people nor human, and shall not be considered as such under any law, Constitutional provision or judicial decision.

No Federal or state government may expend any cash or credit of the United States or any of the several states to directly or indirectly fund any military force or the procurement of any materials that are not required to actually defend any part of the United States or any Territory thereof from an attack or invasion by foreign forces. If there is no actual attack or invasion, or imminent threat of attack or invasion of US borders by foreign forces, with imminent to mean more likely than not within twelve months, by physical, electronic or cyber forces, then no expenditure shall be made. No US citizen or assembly of US citizens, no matter where they are located, shall be considered a foreign force.

Terrorism is a tactic and not a sovereign nation or territory. From the effective date of this amendment Congress shall pass no law nor fund any action to conduct a war on terror, terrorists or terrorism.

No American citizen shall be deprived of any Constitutionally protected right. There are no exceptions to this clause. Violations of this clause by any government or police agent shall be considered acts of treason punishable by imprisonment and fines.

No person may be executed as a penalty for the commission of any crime. 

No US military force may be directly or indirectly funded, equipped, located or stationed, temporarily or otherwise, outside the United States or its territories and within the borders of any sovereign nation or territory unless it is during the conduct of a war on a sovereign nation that was declared by the President and approved by a 2/3 majority of both the House of Representatives and the senate. There are no exceptions to this clause.

A fella can dream of a Constitutional convention...

Spittle spraying jackasses do not win cases

"Again you accuse me of not dealing in good faith.  This reflects not on me but rather on your poor judgment and your ethics."


This came to me from a lawyer with whom I'd had prior dealings.  It was not the first time that he had put himself in the shoes of his client and insulted me personally despite my super conscious efforts to refer only to his client's settlement offers.


He has ranted to me about how my case is frivolous, how he has rock solid evidence in defense, and how he'll seek attorney's fees for my poorly conceived and frivolous litigation.


This attorney has a penchant for throwing stones from the windows of his glass home.


In reality, my opposing counsel has a website indicating he has a license to practice in three states.  He is only able to practice in one.  He tells me my judgment is questionable, but he went to court in a recent case seeking attorney's fees of eighty eight thousand dollars for his client's dubious ERISA claim.  He had so much great evidence, he got fifteen hundred.   I'll keep this to myself for now.


It is a disservice to a client and to your professional reputation to become so wrapped up in your client's representation that you forget that legal representation of a client is a job.  A job that requires some passion, some doggedness and some toughness, no doubt.  But that passion must be tempered with an underlying sense of detachment and an always obvious measure of respect.


But for their fees, lawyers should not have an emotional or personal attachment to the outcome of a typical damages lawsuit.  It is a mistake to be hostile and disrespectful to your opposing counsel in any event.  This is particularly true if they are detached and capable in their own right.  Cooler heads always prevail in front of a judge.  Even if they are only relatively cooler than the head on the spittle spraying jackass at the other table.


Be the cooler head.


As a final note, be respectful in all communications.   Every email, every text and every voice mail can be used as an exhibit in a motion or memorandum to the Court.    It is doubly painful to be taken down by your own hostile words.  Don't let that happen to you.  

Subpoena Power

Whenever a civil lawsuit commences in state or federal court, the parties to the lawsuit gain subpoena power.  The power is found in Rule 45 of the Federal Rules of Civil Procedure.  This means that they can use court authority to direct witnesses to testify or produce documents that may be, or may lead to, admissible evidence.

This power does not apply to other parties.  They are obligated under different rules to make facts and documents available.  (Rules 26, 33, 34 and 36 for example).

A subpoena also acts as a tool allowing a party to obtain  confirmation that the opposing party is producing all that is requested of it.  For instance, in a prevailing wage case by a former employee of a subcontracting construction company, a subpoena to the general contractor for proof of all prevailing wage contracts with the sub in the relevant time period forces the construction company to diligently produce accurate records.

This is so because the former employer does not know what the contracting company will produce.  Unless they are colluding.  Not very likely that.  Companies and people not party to a lawsuit like to keep it that way.

Subpoenas issued to vendors and customers of a corporate defendant are unnerving to all concerned.  Responding or objecting to them can be expensive.  The effort to object or the ease of compliance can be telling too.  In addition to their discovery value, they increase pressure on parties to more strongly consider the value of settling earlier.

Use subpoenas early to make sure you are getting a complete picture of the other party and its claims or defenses.  If other benefits flow from the effort, then so be it.  There is of course the risk that your subpoenas do nothing but irritate otherwise helpful witnesses.  This is a real risk, so consider the costs you may incur before flexing your discovery muscles.







of the completeness of production required of opposing parties.

Getting Work as a Lawyer

A recently admitted lawyer in Ohio had gone on the Bar Association's Solo and Small Firm list serv and posted a request for tips on how to get work.  This was my response, for what it's worth:

 

"Dear Amy:

 

While marketing your services as a lawyer is a process hampered by ethical land mines and a tradition of waiting to be called, there are some easy, inexpensive ways to get work.  First though, decide what broad kind of work you can do.  You can't take on work that you aren't able to do or aren't reasonably able to get prepared to do.

If you want criminal work, get on the court's appointment list.  It's low paid but filled with opportunities for experience and exposure.

For civil work, the biggest bang for your buck may be the local bar association's lawyer referral service.  Dayton's is 175 a year plus 10% of fees earned.  It is so worth the cost. Hundreds of times over.

Go to bar association events.  Go to the national ABA section events if you can afford it.  If you go, and you introduce yourself and make connections, then you quickly become a nationally known attorney.  Have a quick response to "what do you do?"  Be friendly with other lawyers.  Refer work to them.  Volunteer in a group or groups that do something you like. Speak up and take some leadership.  It isn't always quick, but exposure + competence = work.  Always be grateful for referrals. Call or send thank you cards to your referral sources. Refer back and speak well of them.

Write a blog, get a website that links to your blog, and then use a twitter account and a linkedin profile to mention your blog or website.  Write often and be real.  Read blogs by James Altucher.  Read his book "Choose Yourself".  It's five bucks on Amazon and it may change your life.  

Do good work, bill fairly, and deliver more than you promise.  Always, always do what you say you will.  Don't lie or cheat.  Lawyers and judges will know, and it will kill your career.  Don't chase low profit work or clients.  Analyze your practice areas for the highest profit for the least amount of time and effort, and then do that work most of the time.  Develop an expertise. Love it. For me that is FLSA litigation. For you it will likely be something different.

Charge a fee for consultations too. Make yourself valuable from the very first meeting.  If a potential client balks at 50-100-150 for your initial time, then you don't need them.  Exceptions of course, but charge as a rule.  

Finally, go to Dave Lorenzo's website and follow him on Twitter @TheDaveLorenzo, He is undoubtedly the best legal marketing mind.  Read all that he writes and do just part of it. You will get work and clients.

I do these things.  I believe in them and I have been successfully self employed, with luck and gratitude, since 2001.  

Good luck Amy.  Contact me if you'd like any more info. Although I think that is all that I have."

Smoke 'em if you got 'em

Old movies with soldiers often saw drill sergeants relieve their squads with a jovial "at ease smoke em if you got em".

The same can be said for affirmative defenses.  If you have them as a defendant, then you should use them. Like the cigarettes in those old movies, you might not get to use them if you get killed in a battle.

For litigators it's more figurative.  But the civil rules of civil procedure in some state and all federal trial courts tell defendants that if they fail to raise affirmative defenses (with some substance thank you Iqbal and Twombley) then those defenses are waived and barred from later use.

Some lawyers may feel that they can "reserve the right to add defenses" in their answers.  Don't bet on it.  There is no such right to reserve.  The civil rules and the case law are fairly clear on this point.  Aggressive and unyielding plaintiffs' counsel will not stand by while affirmative defenses like good faith error, or acting on counsel's advice, or the plaintiff was exempt from overtime coverage because they were not performing the duties of an employee are raised well after the answer is filed.

Factually unsupported affirmative defenses are now just as troublesome as absent defenses. Thanks to the US Supreme Court's decisions in the Iqbal and Twombley cases (search those names and the cases will appear in google or any other halfway competent search engine) a formulaic recitation of elements of a claim or defense will be vulnerable to a motion to strike.

Use em if you got em.  If you don't, then expect my motion for judgment on the pleadings or a tough row to hoe at summary judgment and trial when your defenses are long buried by waiver.