There’s a comment I hear frequently: “I’m only owed a few thousand dollars… I’m not sure a lawyer will take this case.” Maybe it’s an employee who worked a modest amount of unpaid overtime – 6 or 8 hours per workweek. Or it could be that an employer withheld one commission check, totaling a few thousand dollars, in revenge for the employee’s unexpected resignation. The worker might assume: No attorney is going to take a case this small.
But in wage and hour law, that assumption is often wrong — not because I’m generous, but because the statutes are designed to ensure that workers have their day in court.
The Fair Labor Standards Act Was Built for “Small” Cases
The primary federal law involving unpaid wages and overtime is the Fair Labor Standards Act (“FLSA”). The FLSA contains a mandatory attorney’s fee provision, section 216(b), which states that when an employee prevails, the court “shall… allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.”
The word “shall“ matters here. Attorney’s fees are not discretionary if the employee wins. As the Fifth Circuit Court of Appeals has long held, under the FLSA, “Reasonable attorneys’ fees are mandatory.” Congress understood a very practical point: many wage claims are relatively modest. If lawyers could only recover a contingency percentage, few lawyers could afford to bring these cases involving a few thousand dollars. So Congress made fee-shifting, and cost-shifting, a compulsory part of the statutory enforcement mechanism. As a result, lawyers can take relatively low-dollar cases with confidence that they will be paid (by the defendant) for their time.
This rule applies even if the fees exceed the amount of wages owed. Employees may be surprised to learn that in many FLSA cases, attorney’s fees exceed the unpaid wages. Sometimes defendants fight hard, even in small cases, and try to drive up litigation costs. Courts do not require strict proportionality between the wage recovery and the fee award. Courts have frequently held that reasonable fees are not capped by the size of the damages award. For example, in Black v. SettlePou, P.C., 732 F.3d 492 (5th Cir. 2013), the Fifth Circuit held that “it would be an abuse of discretion for the district court to reduce Black’s attorney’s fee award solely on the basis of the amount of damages obtained.”
Sometimes, an employer understands that its actions violated the law and offers an early settlement in an attempt to cut its losses. But not always. If the employer chooses to fight an overtime claim — and it has a Constitutional right to do just that — real litigation occurs. There may be dozens of hours spent in discovery, payroll analysis, depositions, briefing, and ultimately trial preparation. The time and effort required to try a $6,000 claim is not necessarily different from the time required to try a $60,000 claim. The harder the case is fought, the more expensive it becomes. Section 216(b)’s fee-shifting provision ensures that employers are not able to simply “outspend” employees into dropping otherwise meritorious unpaid wage claims.
Liquidated Damages And Penalties
Under 29 U.S.C. § 216(b), successful FLSA unpaid wage plaintiffs are generally entitled to “an additional equal amount as liquidated damages” — effectively doubling the recovery — unless the employer proves good faith under 29 U.S.C. § 260. Thus, a $5,000 overtime claim may become a $10,000 claim. That changes the economics immediately.
The Louisiana Wage Payment Act (“LWPA”), La. Rev. Stat. § 23:631–632, adds another layer of penalties. If an employer fails to pay wages owed at separation (ie., termination or resignation), the statute allows recovery of ninety days of additional penalty wages as well as attorney’s fees. La. Rev. Stat. § 23:632 provides that an employer “shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages,” plus reasonable attorney’s fees. Attorney’s fees under the LWPA are mandatory for prevailing employees, just like the FLSA. See Beard v. Summit Inst. for Pulmonary Med. & Rehab., Inc., 97-1784 (La. 3/4/98), 707 So.2d 1233.
In many cases, the ninety-day penalty wage exceeds the underlying unpaid wages. Again: the statute is structured to make relatively modest wage claims legally meaningful.
The Real Barrier Is Proof, Not Size
You may think your case is only about a small amount of money. That may be true in terms of unpaid wages alone. From a legal perspective, however, the case may also involve:
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Back wages
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Overtime
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Liquidated damages (doubling under the FLSA)
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Potential penalty wages (under Louisiana law, if applicable)
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Mandatory attorney’s fees
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Costs of litigation
The actual threshold question is therefore not “Is the amount too small?” The question is whether you can prove that you were underpaid.
If you call a lawyer, you should expect to answer:
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Can the violation be proven?
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Do you know exactly how much money is at issue?
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Is there documentation — timesheets, paystubs, emails, text messages?
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Are there witnesses (usually other employees) who support you, or who suffered the same legal violation?
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If there is an overtime exemption, is the exemption classification defensible?
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Was the employer on notice – that is, did you complain about the non-payment or about the extra hours worked?
A $3,000 claim with strong proof is better than a $25,000 claim with no evidence. In the end, the practical question is not whether the claim is “small.” It is whether the law was violated.
When In Doubt, Call
If you believe you are owed unpaid wages, overtime, or other compensation of any kind, click here to contact New Orleans overtime lawyer Charles Stiegler today, or call now at (504) 267-0777. The consultation is free.