Can I Afford to Sue My Employer for Unpaid Overtime?
This is the question behind the question. People call me about unpaid overtime and the first thing they want to know, before they even describe the situation, is whether they can afford to pursue it. They are living paycheck to paycheck. They are worried about lawyer fees. And they assume that suing their employer is something only people with money can do.
It is not. Let me explain how this works.
How do contingency fees work in unpaid overtime cases?
I handle every unpaid overtime case on a contingency fee basis. That means you pay nothing upfront, nothing during the case, and if we do not recover money, you pay nothing at the end either, not even the costs I advanced on your behalf.
My fee comes out of the recovery. If there is no recovery, there is no fee.
This arrangement exists because Congress built the federal overtime law to ensure that cost is never the reason a worker fails to enforce overtime rights. The statute includes a provision that, when a worker prevails, allows the court to award attorney's fees against the employer (29 U.S.C. ยง 216(b)). I take the financial risk on the front end so you don't have to.
Do I have to pay anything upfront?
When you hire me, you do not pay a retainer. You do not pay hourly. You do not put money into a trust account. I invest my own time and resources into your case because I believe in the outcome.
If we do not win, you walk away owing me nothing. I absorb the loss.
Do I have to pay costs out of pocket?
Litigation involves costs beyond attorney time: filing fees, deposition costs, expert fees, copying charges, postage. I advance those costs during the case. If we do not recover money, you do not reimburse them. The risk is mine, not yours.
How do liquidated damages double your recovery?
Beyond the fee structure, the overtime law's damages provisions make these cases more valuable than many people expect. If your employer violated the overtime laws, you are entitled to liquidated damages equal to the amount of unpaid wages. In other words, your back pay is doubled.
The employer can avoid liquidated damages only by proving it acted in good faith and had reasonable grounds to believe it was complying with the law. That is a high bar. In most cases I handle, liquidated damages apply.
Why did Congress build the system this way?
Congress recognized a fundamental access-to-justice problem when it built the overtime law. Most overtime claims involve working people who cannot afford to hire a lawyer at $300 or $400 per hour. Without the contingency-fee model, the cost of pursuing the claim would exceed the value of the claim in many cases. Workers would have a right without a remedy.
The contingency structure solves that problem. Workers can bring overtime claims with no money out of pocket, and the financial risk falls on the attorney who takes the case, not on the worker who was harmed.
What is the real cost of not filing?
The cost of pursuing an unpaid overtime claim is zero. The cost of not pursuing one is real. Every week that passes without filing is a week of damages that may slide outside the statute of limitations. Two years (or three, if the violation was willful) is the window. Once a week drops off the back end, those wages are gone permanently.
If you are owed overtime and you are hesitating because of cost, the math is straightforward. Filing costs you nothing. Not filing costs you money.
What is the bottom line on cost to bring a case?
Representation is strictly on a contingency fee basis. If there is no recovery, you pay nothing, not even the costs. The overtime law was written to ensure that cost is never the reason a worker does not enforce their right to overtime pay.
If cost has been the reason you have not looked into your unpaid overtime, that reason does not exist.
Frequently Asked Questions
Q: Do I have to pay you anything upfront to represent me? A: No. You do not pay a retainer, do not pay during the case, and if we do not recover money, you owe me nothing at all, not even the costs I advanced.
Q: How does your fee work? A: I work on a contingency fee basis. My fee comes out of the recovery. If there is no recovery, there is no fee.
Q: What happens if my case does not succeed? A: If we do not win, you do not owe me anything. Not for my time, not for costs, nothing. I take the entire financial risk of the case.
Q: What about litigation costs like filing fees and depositions? A: I advance all costs during the case. If we do not recover money, you do not reimburse them.
Q: If the employer lost the tip credit by violating the tip pool rules, will the damages be larger? A: Yes. The baseline shifts to the full minimum wage. Liquidated damages double that. The recovery adds up quickly.
If you are owed unpaid overtime and wondering whether you can afford to pursue it, call me at (512) 799-2048 for a free consultation. If there is no recovery, you pay nothing.