Damages available in a FLSA case

Recovery in unpaid overtime cases brought under the Fair Labor Standard Act (“FLSA”) aims to both compensate the worker for the overtime lost and deter employers from engaging in illegal pay practices. Under the FLSA, an employer is required to pay non-exempt employees one and a half times the employee’s regular rate of pay for every hour worked over forty. This recovery for unpaid overtime begins to add up if an employee works well above the statutory minimum of forty and not compensated for the time and labor expended. The FLSA also allows for the recovery of other damages as well, which include: 

Liquidated Damages

In a FLSA unpaid overtime lawsuit, a two year statute of limitations is applied. Under the two year time period, courts apply a “good faith” analysis for purposes of establishing liquidated damages. Liquidated damages are sometimes called “double damages” because their amount is equal to the unpaid overtime wages. Liquidated damages can be avoided if the employer can show that he or she acted in good faith in failing to pay the employee or that the employer had a reasonable relief that he or she was in compliance with the act. However, this is a high bar, and courts have held that there is a “strong presumption in favor of” assessing liquidated damages.  Walton v. United Consumers Club, Inc., 786 F.2d 303, 310 (7th Cir. 1986).  

Attorney’s Fees

The relevant provision of the FLSA, 29 U.S.C. § 216(b), provides that the “court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant.” The language of the statute mandates that the Court award attorney’s fees to the prevailing party, but gives the Court discretion in deciding what is reasonable. The computation of reasonable attorneys’ fees involves a three step process: 

  1. determine the nature and extent of the services provided by Plaintiff’s counsel; 
  2. set a value on those services according to the customary fee and quality of the legal work; and 
  3. adjust the compensation on the basis of the other factors that may be of significance in the particular case. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974); Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1092 (5th Cir.1982).

It is commonplace for FLSA attorney’s fee awards to equal or even greatly exceed the amount of the plaintiffs’ recovered unpaid wages if the case goes to trial.  See, e.g., Howe v. Hoffinan-Curtis Partners Ltd, LLP, 215 Fed. Appx. 341 (5th Cir. 2007) (finding that “[g]iven the nature of claims under the FLSA, it is not uncommon that attorney fee requests can exceed the amount of judgment in the case by many multiples” and granting attorneys’ fees of $129,805.50 with damages of $23,357.30); Dorsey v. TGT Consulting, LLC, No. CCB-10-92 (D. Md. Feb 4, 2014) (granting Plaintiff’s motion for fees, awarding $407,270 in fees, after claimants settled for $240,000); Lucio-Contu v. Vela, 239 Fed. Appx. 866 (5th Cir. 2007) ($3,349.29, $1,2960.00, and $52.50 in damages for three plaintiffs and $51,750 in attorney’s fees); Roussel v. Brinker International, Inc., 2010 WL 1881898 (S.D. Tex. 2010) (awarding attorney fee recovery of approximately $1,600,000.00 on recovery of approximately $200,000.00 for plaintiffs); Black v. SettlePou, P.C., 732 F.3d 492 (5th Cir. 2013) (affirming award of $51,750 in fees on a $3,348.29 overtime recovery).

Litigation Costs 

Under the FLSA section 28 U.S.C. §1920, certain expenses that were charged in the prosecution of a case can be recoverable. Some examples include deposition costs, photocopying expenses, and docket fees. The lawyer pays for these costs out of pocket so if the lawsuit is successful, it would only be fair and equitable to repay these expenses. 

Understanding the total universe of available damages in FLSA cases is important when assessing an overtime case. Employers who fail to properly pay their employees unpaid overtime have significant exposure because they could be forced to pay the damages listed above. If you believe you have a claim for unpaid overtime, speak with an experienced overtime pay attorney. Josh Borsellino is a licensed Texas attorney who fights to recover your the maximum amount of damages available to his clients under the law. He can be reached at 817.908.9861 or 432.242.7118.

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