Will I have to pay a lawyer to pursue an overtime claim?

No. FLSA cases are handled on a contingency fee basis, which means you pay nothing upfront and owe nothing to your attorney unless you recover money through a settlement or judgment. The attorney fee comes out of the recovery itself, not from your pocket separately. If the case settles for $50,000, the fee is a percentage of that recovery. If there is no recovery at all, you owe nothing. Cost is not a barrier to pursuing a legitimate FLSA claim, and that's by design.

What is a contingency fee?

A contingency fee arrangement means your attorney is paid only if and when you recover money, either through a settlement or a judgment. The fee is typically calculated as a percentage of the total recovery, usually somewhere between 25 and 40 percent depending on the complexity of the case and how far it has to go. You and your attorney agree to the percentage before the case begins, so there are no surprises. If the case doesn't result in a recovery, the attorney receives nothing and you owe nothing.

Do I pay costs if I lose?

No. One of the most important protections in an FLSA case is that if you lose, you pay nothing. The attorney absorbs the costs of litigation: research, discovery, court filings, deposition costs, and any other expenses incurred while pursuing your claim. You don't get a bill at the end of an unsuccessful case. This protection is what makes it genuinely risk-free to pursue a legitimate wage claim. The downside of a losing case is limited to the time you spent on it, not money out of your pocket.

How is the attorney fee calculated?

In most FLSA cases, the contingency fee is a percentage of the recovery, typically in the range of 25 to 40 percent. Some cases are more complex or more likely to go to trial, which can affect the percentage. Less complex cases, or cases that resolve early in the process, often fall toward the lower end of that range. The exact percentage is agreed to in the fee agreement before the case starts. In some cases, attorney fees are recovered separately from the client's damages under the FLSA's fee-shifting provision.

Why can attorneys afford to handle these cases without upfront payment?

Congress built the FLSA with a fee-shifting provision, section 216(b), that requires employers who lose to pay the prevailing employee's reasonable attorney fees. This is what makes the contingency model work and what ensures that workers have access to representation regardless of the size of their claim. Without fee-shifting, only workers with large enough claims could attract an attorney. With it, an attorney can take a modest FLSA case knowing that if the worker wins, the employer pays the attorney fees as part of the judgment or settlement. If there is no recovery, you pay nothing, not even the costs.

It Costs Nothing to Sue for Overtime: Contingency Fees and the FLSA

One of the biggest concerns workers have when they realize they are owed unpaid overtime is cost. "Can I afford a lawyer? What if I lose?" These are reasonable questions, and the answer will surprise you: it costs nothing to pursue an FLSA overtime claim.

The Fair Labor Standards Act is built on a principle that cost should never be a barrier to enforcing wage rights. Congress embedded that principle in the statute itself through a fee-shifting provision. This makes it economically feasible for attorneys to handle overtime cases without requiring workers to pay upfront.

How Contingency Fees Work

A contingency fee agreement means the attorney takes the case with zero upfront payment from you. The attorney is paid only if you win, either through settlement or judgment.

The attorney's fee is typically a percentage of the recovery. In most FLSA cases, that percentage ranges from 25% to 40%, depending on:

The complexity of the case
The amount recovered
How far the case advances (settlement vs. trial)
Whether the case is an individual claim or a collective action

Example: You settle your case for $50,000. Your attorney's contingency fee is 33% of the recovery. You keep $33,500 and the attorney receives $16,500 from the settlement. If you had lost, you would owe nothing.

If You Lose, You Pay Nothing

This is the critical protection: if the case does not recover, you pay nothing.

Many clients ask, "What if we go to trial and lose? Will I owe attorney fees for the time spent?"

The answer is no. Under the contingency fee agreement, if there is no recovery, there is no fee. The attorney absorbs the cost, including research, investigation, discovery, depositions, expert witnesses, and trial preparation.

This shifts the risk from you to the attorney. The attorney betting that the case is strong enough to justify the investment in time and resources.

Why Attorneys Can Afford This Risk

The FLSA has a provision (Section 216(b)) that requires the losing employer to pay the prevailing employee's attorney fees. This is called "fee-shifting."

If you win, the court awards your attorney fees, and the employer pays them. If you lose, the employer does not pay fees (you do not owe them), but you also do not recover. The case just ends.

This fee-shifting provision makes it economically possible for attorneys to take FLSA cases on contingency. The attorney knows that if they win, they recover a fee from the employer (or from the settlement amount), which covers the cost of representation.

Without fee-shifting, most workers could not afford lawyers, and most FLSA violations would go unpunished because employers could violate the law with impunity.

The Recovery Is Usually Enough

FLSA cases often involve multiple years of overtime violations. A worker owed unpaid overtime for two or three years can recover tens of thousands of dollars in back pay and liquidated damages.

Example:

Worker: $25/hour, 8 hours of unpaid OT per week for 2 years
Back pay: 8 × $37.50 (1.5 × $25) × 104 weeks = $31,200
Liquidated damages: $31,200
Total recovery: $62,400
Attorney fee (33%): $20,592
Worker keeps: $41,808

Even after the attorney fee, the worker receives substantial compensation for the unpaid wages.

This is why contingency fees are sustainable in FLSA cases. The recovery is usually significant enough to cover the attorney's fee and still leave the worker with a meaningful amount.

What Costs Are Covered

Under a contingency fee agreement, the attorney typically advances costs. Costs include:

Court filing fees
Service of process
Depositions
Expert witness fees
Document production
Investigation expenses

These are paid by the attorney as part of litigating the case. If the case settles or the worker wins, the costs are recovered from the settlement or judgment. If the worker loses, the attorney eats the costs.

This is another reason the contingency model works: the attorney believes the case is strong enough to justify advancing the costs.

Contingency Agreements Align Your Interests With the Attorney

When an attorney works on contingency, their interests are aligned with yours. The attorney makes more money if you recover more. There is no incentive to cut corners, settle for too little, or rush to an unfavorable resolution.

Conversely, if you were paying an hourly fee, the attorney might be incentivized to drag out the case and bill more hours, even if a settlement would be better for you.

Contingency aligns the incentives the right way: the attorney makes money by getting you the best recovery possible, and that recovery comes from the employer, not from your pocket.

How Contingency Is Applied in Different Case Types

Individual lawsuits: The attorney takes your case as a solo plaintiff, handles all discovery and litigation, and takes a percentage of the settlement or judgment.

Collective actions: The attorney handles the litigation on behalf of all opt-in plaintiffs. The attorney's fee is usually approved by the court and comes from the settlement amount. Individual plaintiffs see the settlement breakdown in the claims notice.

Complex cases with trials: If the case goes to trial, the contingency fee percentage may be higher to account for the increased time and risk. But the structure remains the same: no fee if no recovery.

The Bottom Line

You have no cost to pursue an overtime claim. You do not pay:

Upfront attorney fees
Costs of litigation
Court costs
Deposition fees
Expert witness fees
Anything if you lose

You only pay your attorney if you recover, and the fee comes from the recovery. The FLSA's fee-shifting provision ensures that employers pay for the enforcement of wage rights, not workers.

This is intentional. Congress wanted to ensure that workers could enforce their rights without worrying about cost.

Frequently Asked Questions

Q: If I settle for $40,000 and the attorney fee is $13,000, do I receive $27,000 or is there more taken out? A: You receive $27,000. The settlement agreement is usually drafted to show the gross amount ($40,000), the attorney fee ($13,000), and your net amount ($27,000). Costs advanced by the attorney are also deducted, but they are typically minimal. You keep the remainder.

Q: What if the case goes to trial and takes two years? Will the attorney fee be different? A: Possibly. If the case is especially complex or takes significantly longer to litigate, the attorney might negotiate a higher fee percentage with you upfront (e.g., 40% instead of 33% for a trial case). But this is negotiated before the case progresses, and you are not paying out of pocket, any fee comes from the recovery.

Q: Do I have a choice in attorney fees? A: Yes. You can negotiate the contingency percentage upfront. Some cases call for 25%, others 33%, and complex litigation might be 40%. You can discuss the fee with the attorney and agree on a reasonable percentage before you sign the contingency agreement.

Q: Can the attorney fee be increased if the case settles quickly? A: No. The percentage is set upfront in the contingency agreement. If the case settles for more than expected, the fee percentage does not change. You benefit from the higher settlement, and so does the attorney (because the fee is a percentage of a larger number). But the percentage remains fixed.

Q: What if the employer appeals and the case goes on longer? A: The contingency percentage usually covers the entire case, including appeals. The fee does not increase just because the case is appealed. But the attorney might negotiate a different structure if the case requires significantly more work.

Cost should never prevent you from enforcing your overtime rights. Contact Welmaker Law, PLLC for a free consultation. No upfront payment, no costs if you lose, and full alignment of interests: I make more when you recover more.