A wage and hour class action is where one or more workers bring a legal action on behalf of a larger group of workers, alleging that they all suffered the same or similar damages because of the employer’s violation of labor laws.
The top six grounds for a wage and hour class action lawsuit are:
- minimum wage violations,
- misclassifying workers,
- not paying overtime,
- requiring work off the clock,
- not providing meal and rest breaks, and
- other labor law violations.
Many of these class action lawsuits involve more than one of these grounds for filing a claim.
1. Minimum wage violations
Federal law sets the minimum wage at $7.25 per hour under the Fair Labor Standards Act (FLSA).1 However, many state laws provide a higher minimum wage.2 Some cities or counties have an even higher minimum wage than their state law provides.
If your employer is not paying you at least the applicable minimum wage, you can file a wage and hour lawsuit. These lawsuits often claim that your employer is:
- paying an hourly wage below the minimum,
- treating you as an independent contractor to avoid paying you the minimum wage, or
- requiring you to work enough time off the clock that your wages fall below the minimum.
If your employer is doing this to you, there is a good chance that other employees are being treated similarly. This can lead to a class action.
2. Worker misclassification lawsuits
Companies have to classify their workers correctly. Workers can be misclassified in 2 ways:
- employees can be misclassified as independent contractors, and
- non-exempt employees can be misclassified as exempt employees.
In both cases, misclassified workers are not entitled to:
- the minimum wage,
- overtime pay,
- employee benefits, like healthcare, and often
- meal and rest breaks.
Additionally, employees who have been misclassified as independent contractors are generally liable for their own negligence. This means that the employer does not have to pay for the mistakes they make while on the job.
For example: Julie drives for a ridesharing company. While she is paid like an independent contractor, the ridesharing company controls her work as if she were an employee. One day she causes a car accident. The ridesharing company claims that she is an independent contractor in order to avoid vicarious liability for the crash through respondeat superior.
Some of the largest class action wage and hour lawsuits have been worker misclassification claims. Over 1,000 ridesharing drivers recently settled with Uber for $8.4 million to end one such class action suit in federal court.3
3. Overtime violations
If your employer is not paying you overtime pay, it can be grounds for a wage and hour claim.
Non-exempt employees are entitled to one-and-a-half (1.5) times their regular rate of pay if they work more than 40 hours in a workweek.4 Many states provide overtime pay in other circumstances, like if you work:
- 8 hours in a single workday,5 or
- 7 consecutive days in a workweek.6
Some states even provide double-time pay, or twice your regular rate of pay, if you work extremely long hours.7
However, employers can try to avoid paying you overtime compensation by:
- counting all of your hours that should earn overtime pay as regular hours,
- misclassifying you as an independent contractor or exempt employee so you are not eligible for overtime pay,
- demanding that you work off the clock so your overtime hours are not logged, or
- making you work during your rest or meal breaks so that your total work hours do not entitle you to overtime pay.
If your employer is doing one of these things to you, they are likely doing it to your coworkers as well. By filing a class action you can all recover your unpaid overtime wages.
4. Requiring “off the clock” work
Employers are forbidden from requiring their employees to work off the clock without paying them.8 According to some state and federal appeals courts, this includes making employees work even just a few minutes before or after their shift,9 but does not include such small amounts of time that would be unreasonable to even record.10
To succeed in this type of wage and hour claim, you have to show that:
- you performed work for your employer,
- you did not receive compensation for that work because you were not on the clock,
- your employer knew or should have known that you were performing the work, and
- your employer either did not stop you from performing the work, or did not try to compensate you for it.11
Note that your employer does not have to expressly demand off-the-clock work. You can have a valid claim if your employer, for example:
- gives you an amount of work that cannot be completed in a single shift, but demands that you finish it all before you leave the workplace,
- tells you to clock out before you are done working,
- gives you work to do while you are on a rest or meal break, or
- sees that you are working after you have clocked out but does not stop you.
Many workers who are made to work off the clock find that their coworkers have been told to do so as well. A class action can recover these unpaid wages.
5. Meal and rest period violations
Federal law does not require employers to provide meal or rest breaks. However, most employers provide for them in the employment contract. When they do, federal regulations state that:
- breaks from 5 minutes to around 20 minutes are rest breaks, which are paid, while
- breaks of 30 minutes or more are meal breaks, which are unpaid.12
State labor laws may mandate such breaks. They also often specify how often these breaks must be provided.13
During rest or meal breaks, your employer cannot require you to work or to be “on-call.”14 If your employer makes you work or stand by to work, they are legally denying you of your meal or rest break.
If you have been denied your meal or rest periods, you can file a wage and hour claim. If the practice of denying breaks was widespread at your company, you and other employees can form a class action.
6. Other common labor violations
Other common labor law violations that frequently lead to class action claims are:
- cutting off your healthcare coverage while you are on family and medical leave,
- not receiving hazard pay under your employment contract, and
- taking your tips and gratuities.
These are just a few of the other situations where your employer’s conduct likely affected lots of other employees, as well.
What are the benefits of filing a class action?
Class actions consolidate lots of claims into a single lawsuit. This does 2 things:
- it increases the damages at issue, which raises the stakes on the employer, which makes them more willing to settle out of court in order to avoid a trial, and
- it lets a large number of victims and plaintiffs rely on the work of a single employment attorney or law firm, reducing the attorneys’ fees of the employment litigation.
This collective action also helps the court system by reducing the number of wage and hour cases it has to handle.
How are class actions formed?
Class actions are formed when a victim of a wage and hour violation hires a lawyer from an employment law firm. If there are indications that other current and former employees are victims of the violation, the lawyer can seek them out. If there are enough, it can warrant a class action.
In order to be certified as an employment class action, you and your lawyer have to show that:
- the class is large enough that adding everyone individually to the lawsuit is impracticable,
- there are questions of fact or law that are common to everyone in the class,
- the claims of the people representing the class are typical of the claims of the rest of the class, and
- the people representing the class will adequately and fairly protect the interests of the class.15
Class actions may also receive conditional certification. Other potential victims with similar wage and hour issues can then opt-in to the class action litigation. This helps the class certification grow and collect new state wage and hour class action lawsuits.
What if my employment contract forbids wage and hour class actions?
Many employers require employees to sign arbitration agreements that waive their right to:
- file a wage and hour lawsuit in court without first going through arbitration, and/or
- participate in a class action lawsuit.
While these agreements are generally enforceable, that is not always the case. You may still have a right to file or participate in a class action over wage and hour law violations.
- 29 USC 206(a).
- See New York Labor Law 652.
- Chase Difeliciantonio, “Uber could settle misclassification lawsuit for $8.4 million, under proposed agreement,” San Francisco Chronicle (Feb. 22. 2022).
- 29 USC 207.
- Nevada Revised Statute 608.018 (with exceptions).
- See Kentucky Statute 337.050.
- See California Labor Code 510.
- See Adoma v. University of Phoenix, Inc., 270 F.R.D. 543 (E.D. Cal. 2010).
- Troester v. Starbucks Corp., 5 Cal.5th 829 (2018).
- Rodriguez v. Nike Retail Services, Inc., 928 F.3d 810 (9th Cir. 2019).
- Adoma v. University of Phoenix, Inc., supra.
- 29 CFR 785.18 and 785.19.
- See e.g., California Labor Code 512 and 8 California Code of Regulations (CCR) 11040.
- 29 CFR 785.19.
- Federal Rule of Civil Procedure, Rule 23.