How to Defend Yourself in a Labor Law Violation Lawsuit

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1Planning Your Defense

2Negotiating a Settlement

3Defending Yourself in Court

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Labor law violations include failing to pay qualified employees the minimum wage or overtime. These are called “wage and hour” lawsuits. If you are sued for a labor law violation, then you will need to defend yourself in a lawsuit. First, find a qualified attorney who can offer you expert advice and then find evidence that you actually did not violate the applicable labor law.

Steps

Part 1

Part 1 of 3:

Planning Your Defense

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   Read the employee’s complaint. The employee will start the lawsuit by filing a complaint in court. In this document, the employee will explain the facts that gave rise to the lawsuit and will also make a demand for money damages.

   • A summons should be served along with the complaint. This document should tell you how much time you have to formally respond to the lawsuit by filing your answer.
   • Make note of the date for responding. If you fail to respond in time, then the plaintiff could get a “default judgment” against you. With a default judgment, you lose without having a chance to defend yourself.
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   Identify the violation. There are many labor laws that you must follow. However, the most common labor law lawsuits are filed for violating the following provisions:

   • Minimum wage. Federal and state law set a minimum wage. These laws apply to most, but not all, employees. The federal minimum wage is currently $7.25. Your state may set a higher amount.
   • Overtime pay. Under federal law, employees must be paid at least time and a half for any work in excess of 40 hours a week. Depending on your state, the employee must also be paid time and a half for any hours worked in excess of eight in a single day.
   • Sick leave. Your city or state might have recently passed a sick leave law. If so, you must provide the required amount of sick leave. For example, in New York City, employers must offer employees 40 hours of sick time if the employee works at least 80 hours in a year.
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   Check if you have violated the law. Your best defense will be that you have complied with the law. To fully understand the details of your law you need to meet with a lawyer. You can also analyze each of these common defenses to see if any apply to the employee:

   • The employee does not qualify for the minimum wage. Federal law provides several exceptions to the minimum wage requirement. For example, companions for the elderly and employees with disabilities are exempt from federal minimum wage laws. If the employee sues under state law, then check your state law exemptions by visiting your state’s Department of Labor.
   • The employee doesn’t qualify for overtime pay. Federal and state laws also provide exemptions from overtime laws. The most common exemption is for professional employees paid a salary. To qualify for an overtime exemption, the salaried employee must earn at least $455 a week and also perform the duties of an administrative, executive, or professional nature. Typically, this means the employee’s job requires an advanced degree or consists of high-level decision-making. Take out the employee’s job description and see if the employee qualifies for this exemption.
   • The employee didn’t work overtime. You can also defend yourself by showing that the employee never worked overtime and thus didn’t qualify for overtime pay. Take out your records and timesheets to check the employee’s hours. As the employer, you have the burden of showing that you properly paid the employee for each hour worked.
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   Meet with a lawyer. An attorney can best advise you about your defenses. If you work for a large company, then the company should have an attorney as an employee. This person is the general counsel. If you work for a smaller company, then you might already be paying a lawyer on a regular basis to defend you. Ask your supervisor who to call.

   • If you don’t have a lawyer already, then you will need to hire one. Look for an attorney who specializes in wage and hour disputes.
   • If you work for a small business which can’t afford an attorney, then you should nevertheless seek some legal advice. Many attorneys now provide a half-hour consultation for free or for a reduced price. You should get a referral from your local or state bar association and set up a consultation.
   • During the consultation, ask the lawyer if he or she provides “unbundled” legal services. With this arrangement, the lawyer doesn’t take over the entire case. Instead, he or she does only the tasks you give to them. For example, the attorney could draft a motion for your or provide coaching. Using “unbundled” legal services is a good way to keep your legal costs down.
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   Draft an answer. You have to draft an answer and file it with the court to respond to the complaint. Your lawyer can do this for you (if you have hired a lawyer). The purpose of the answer is to tell the court what allegations in the complaint you agree or disagree with. You must respond paragraph by paragraph, admitting or denying each allegation. You may also claim to lack sufficient knowledge to admit or deny at this time.

   • If you are representing yourself, then you should stop into court and ask the court clerk if there is a printed answer form you can use. Many courts now have these.
   • If you need to draft your own, then the court may have a sample answer you can use. You can also visit a local legal aid office to see if they have created a form for the public.
   • Also see Answer a Civil Court Summons for more helpful information on drafting your own answer.
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   Raise defenses. You can raise some defenses in your answer. These defenses can prevent the employee from suing or can limit how much you might have to pay if the jury decides against you.

   • For example, you can argue that the employee waited too long to sue. If the employee is suing for violation of federal law, then he or she generally only has two or three years to bring a lawsuit. If the employee has waited four years, then you can have the case dismissed.
   • You can also argue that you acted in “good faith” and reasonably believed you were not breaking the law. If you are successful, then you will not have to pay double damages if you lose at trial.
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   File the answer. Once you have completed the answer, you should make several copies. Take the original and the copies to the court clerk. Ask to file. The clerk will stamp all of your copies with the date.

   • You probably don’t have to pay a filing fee, although this will depend on the court. If you can’t afford any fee, then ask for a fee waiver form.
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   Serve a copy on the employee. If the employee has a lawyer, then serve a copy on the lawyer instead.

   • Ask the court clerk about acceptable methods of service. Generally, you can mail the answer or have someone 18 or older personally serve the complaint.
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   File motions. After filing an answer, you might file a variety of motions to help get the case dismissed or to winnow down the issues for trial. For example, if you are a larger corporation, then many “wage and hour” lawsuits will probably be brought as a class action.

   • In a class action, a group of plaintiffs join together and sue you for a common injury. In order to continue as a class action, the employees need the judge to “certify” the lawsuit as a class action.
   • You should try to prevent the lawsuit from being certified in this way. If you succeed, then each individual employee will have to bring his or her own lawsuit. Often, an employee won’t even bring the lawsuit.
   • To prevent class certification, you will need to file a Motion in Opposition. See Defend Yourself in a Class Action Lawsuit for more information.
   • You might also want to file a motion for summary judgment. These motions are a good way to dispose of a frivolous lawsuit. For example, you might have timesheets the employee has signed. If these timesheets do not show any overtime worked, then you could get a lawsuit for overtime dismissed on summary judgment.
   • Essentially, you argue in a summary judgment motion that the law and facts are so clearly in your favor that a trial is unnecessary. If you want to bring a summary judgment motion, then hire a lawyer to draft it for you.
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Part 2

Part 2 of 3:

Negotiating a Settlement

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   Offer to negotiate. As the employer, you have incentives to resolve the case outside of court. For example, the employee could get double damages for some claims. If you cost the employee $5,000 in overtime pay, then you could end up paying $10,000 if you lose at trial.

   • Have your lawyer call the employee’s lawyer and propose settlement. If you don’t have a lawyer, then call the employee’s lawyer yourself.
   • Alternately, the judge may require that you attend a settlement conference. Because wage and hour lawsuits have exploded over the past few years, judges now encourage parties to first try and resolve their dispute out of court.
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   Negotiate effectively. The purpose of negotiation is for each side to give up a little. You are highly unlikely to settle the case without having to pay money. Effective negotiation requires knowing just how much you are willing to give up.

   • Meet with your lawyer and come up with a maximum amount of money you are willing to pay. For example, if the employee has a valid claim for $5,000 in overtime pay, then you might be willing to settle for $4,000 maximum.
   • By contrast, if the employee has a very weak case, then you might only want to settle for $2,500. If the employee insists on more, then you might want to gamble on a trial.
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   Attend mediation. Sometimes people need help from a neutral third party to reach a settlement. This is called mediation. During mediation, the mediator will listen to both sides explain the dispute.

   • A mediator does not decide who is right or wrong. Instead, the mediator helps you and the employee come up with a solution that works for both of you.
   • To find a mediator, you should contact your local courthouse, which may keep a list or database of mediators. Also call your local or state bar association, which should have information about mediators.
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   Draft a settlement agreement. If you and the employee reach an agreement, then you should draft a settlement agreement and sign it. The settlement agreement becomes a contract. Your court may have sample settlement agreement forms you can use. You can also search the Internet. Many attorneys have sample settlement agreements that they post to their website.

   • Be sure to get a waiver and release from the employee. This release will relieve you of any further liability. In other words, the employee agrees not to refile the lawsuit. If the employee breaks this agreement, then you can sue.
   • If you work with a mediator, then he or she can help you draft the settlement agreement.
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   File the agreement with the court. You should file the settlement agreement with the court and get the judge’s approval. Historically, employers in wage and hour disputes have had the option of not filing. By refusing to file, the settlement would not be made public.

   • However, if an employer chose not to file the settlement with a court, then any employee release would be unenforceable.
   • Furthermore, all federal courts now require that all federal wage and hour settlements receive court approval.
   • Your best bet is to always file with the court, even if you have an option not to. If you are worried about the lawsuit becoming public, then discuss the dangers of not filing your settlement agreement with your lawyer.
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Part 3

Part 3 of 3:

Defending Yourself in Court

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   Learn the court rules. The employee can sue you in either small claims court or in regular civil court. These courts generally have different procedures. For example, in some small claims court you cannot have a jury. Instead, the judge will decide the case.

   • Some small claims courts publish handbooks you can read. You should search on the court’s website or ask the court clerk if any handbook is available.
   • If you want to see how things operate in court, then sit in on a trial. Courts are open to the public and you can sit in on a trial or a hearing.
   • Pay attention to where the two parties stand or sit, as well as how they talk to the judge. As the defendant, you will probably sit at the table on the right-hand side of the court (facing the judge).
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   Create exhibits. If you want to introduce documents at trial, then take out the documents. For example, you might want to introduce the employee’s signed time sheets. You will have to mark each document as an exhibit.

   • Use exhibit stickers to mark each exhibit. You can often get these from an office supply store or from the court clerk.
   • You might have to show the exhibits to the clerk before the trial begins. When you arrive at court, take out your exhibits and ask the court clerk if he or she needs to see them.
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   Arrive early. On the day of your trial, you should give yourself plenty of time to get to the courthouse and pass through any required security. If you are driving, make sure to leave sufficient time to find parking. You want to be in the courtroom with at least fifteen minutes to spare.

   • Before walking into court, turn off your cell phone or pager and dispose of any food or drinks. You shouldn’t bring them into court.
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   Pick a jury. The judge will call a panel of jurors up to the front of the courtroom. They will sit in the jury box as the judge asks them questions. The purpose of the judge’s questions is to get to know basic information about the juror (career, hobbies, etc.) and to find out if the juror can be fair.

   • After asking the jurors questions, you and the employee will go into the judge’s chambers (her office) and talk about the jurors. If you think a juror can’t be fair—because he knows too much about the case or has admitted that he can’t be fair—then ask the judge to remove the juror “for cause.”
   • You will probably also get a number of “peremptory challenges.” You can use these to excuse any juror. When you use a peremptory challenge, you don’t have to give a reason and you don’t need the judge’s permission.
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   Make an opening statement. The trial begins with opening statements. The employee will go first, and you go second. Be sure to lay out for the jury who will testify and what their testimony will show.

   • You should avoid making argument during the opening statement. Instead, stick to the facts.
   • For example, you can say, “As the evidence will show, the plaintiff did not work over 40 hours in a week for the entire eight months she was employed by the defendant. Instead, as her signed timesheets will show, she worked less than 40 hours.”
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   Cross-examine the employee’s witnesses. The employee will be able to present witnesses and evidence first. If you want, you can ask any witness questions, although you don’t have to. In a wage and hour lawsuit, most of the facts should not be contested.

   • However, the employee might testify that he did not do the work listed in his job description. Specifically, he might argue that his job duties were not of a professional or supervisory nature and therefore he should have qualified for overtime.
   • In this situation, you might want to ask the employee to walk through a typical day at the job. Get the employee to explain what tasks he performed. In your closing argument, you can then point to this evidence and argue that most of the job duties are actually of a professional nature.
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   Testify on your behalf. You might need to testify. In particular, you will probably have to testify if you raised a “good faith” defense to the allegations. In this situation, what you were thinking when you failed to pay overtime or a minimum wage will be a focal point of the trial. Remember the following tips to give effective trial testimony:

   • Look professional. You should dress as if you are attending a job interview or going to church. The judge and jury will form assumptions based on appearance, so it is important that you look professional.
   • Always tell the truth. If the employee’s lawyer catches you in a lie, then the jury might disbelieve everything you say.
   • Speak clearly. You want to be heard. Also, by speaking clearly, you project confidence.
   • Do not guess. If you didn’t hear a question or do not understand it, then ask the lawyer to repeat it.
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   Make a closing argument. In your closing, sum up the evidence and show the jury that you did not violate the employee’s labor rights. Be sure to remind jurors of specific pieces of evidence and try to persuade them to interpret this evidence in a way that is favorable to your case.
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   Wait for the verdict. After you finish your closing argument, the judge will read the jury instructions. The jury then retires to consider the evidence. In federal court, the jury must be unanimous.

   • However, in some state courts you can lose if nine or more jurors decide against you.
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    Appeal, if necessary. Should you lose at trial, then you might want to think about appealing. You might not be able to appeal if you appeared in small claims court. However, you generally have the right to appeal.

    • Appeals can be time-consuming and expensive. You will have to order trial transcripts from the court reporter and also draft a lengthy legal argument called a “brief.” The legal brief requires extensive familiarity with the law and with the procedures of the appellate court.
    • You should discuss with a lawyer whether or not an appeal will be worth your time and money. If your lawyer thinks you have strong issues to raise on appeal, then you might want to hire the lawyer to represent you on appeal.
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