What Type of Documentation Is Needed to Bring a Wage and Hour Case?
Interviewer: This leads me to the point, so working extra hours and not getting tips and other abuses, how do they get documented so you actually have a case? I’m sure people to come to you after there’s a problem. Where do you find evidence that supports your client’s case?
The Client’s Pay Stubs Are Used as Evidence as well as the Employer’s Pay Records
Michael: The Fair Labor Standards Act imposes a burden on the employer. The employer is required to keep all pay records for seven years, so that’s one avenue is we would be able to request or demand, that the employer produces all pay records for whatever individuals we’re suing on behalf of. In addition, when some of our plaintiffs come in, some of our plaintiffs do have pay stubs that we look at.
Typically, a lot of the pay stubs that we see clearly show a violation. It will show let’s say 60 hours at $10.00 an hour is $600.00 for that pay week, but that’s in violation, assuming that they’re not exempt, because for the last 20 hours, they should be paid $15.00 an hour.
Attorney Samuels Has Handled Cases for Undocumented Workers, a Class of Employees Often Victimized by Unfair Labor Practices
Sometimes once we see a pay stub, we’ll know right away that the employer has violated the employee’s rights under the Act. In other cases, we represent also some undocumented workers.
Typically, those workers get paid in cash, and we still are able to bring a case on their behalf because once an action is filed, we’re entitled to do something called discovery. Discovery means we’re allowed to demand that the employer provide us with all pay records, all time cards, and any payroll records for any individuals that we’re representing. If the employer’s not able to do it, we’re entitled to the benefit of the doubt that the records would show that our rights have been violated.
Depositions: Attorney Samuels Frequently Deposes the Plaintiff to Support an Undocumented Worker’s Case
Interviewer: Yes, how would you show that if someone is just paid under the table?
Michael: We would conduct something called depositions. Those are sworn statements where the plaintiff would come in. The other attorney that’s representing the employer would be present, and there would be a court reporter. The plaintiff would be required to take an oath, and the other lawyer would ask him questions about what hours he worked, what days he worked, how many hours he worked per week, and what type of work he did.
During a Deposition, the Burden of Proof Rests with the Employer to Dispute Any Allegations of Unfair Practices
All of those answers are under oath, so if a plaintiff swears under oath that he worked the hours, it would be up to the employer to come forth with some type of evidence showing that he’s lying. If they don’t have any records, it’s going to be a very tough burden for the employer to overcome what the plaintiff/employee has to say.
Interviewer: It sounds like other scenarios would be where the employer asks the employee, to stay late today, and that happens regularly, or the employer needs the worker to come in on Saturday, or something like that. What if that doesn’t show up on the paychecks and payroll records?
Under oath the person would say, they asked me to come in every Saturday for a year. They didn’t pay me. The employer wouldn’t have records, so it would fall in favor of the plaintiff?
Michael: Yes. We would look at a plaintiff’s pay stubs. Sometimes the plaintiff will say, okay, on the pay stub they put down that I worked 40 hours, but I really worked 60 hours that week. I came in on Saturday and Sunday, and they never put it down on my pay stub, but I really worked extra hours, and I’m entitled to those overtime hours.
What we would do in a situation like that is we’d really grill the plaintiff to find out details about what type of work he did, and we would try to look for outside proof that he worked there on Saturday and Sunday just so that we’re confident.
Attorney Samuels Has Had Success in Cases Where the Plaintiff’s Pay Stub Does Not Reflect the Amount of Hours the Employee Was Compelled to Work
If that’s what they tell us and everything points to the fact that they really did work those times that are not showing up on the pay stub, we’ll bring a claim on his behalf, and we’ll make the employer produce any records. We’ll quiz the employer about what hours he’s open, if he’s open on Saturday and Sunday, so it turns into a whole fact finding mission.
Generally, when we bring those cases, we’ve been very successful in establishing that sometimes the pay stub doesn’t accurately reflect the amount of hours that the employee worked. If we feel, if something raises a red flag to us and we feel that the plaintiff’s not being entirely truthful with us, that’s a case that we will not take.