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FLSA litigation defense is a major focus of this law firm, and Nolan Klein has recently taught a course on how to effectively litigate these cases. 

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An employee who brings a lawsuit under the FLSA for unpaid overtime compensation and liquidated damages bears the initial burden of proving that he performed the work for which he was not properly compensated. To prevail on an FLSA overtime claim, and to obtain liquidated damages, a plaintiff must prove that he:

• Worked overtime without compensation; and

• The employer knew or should have known of the overtime work.​

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It is incumbent upon the employee to allege not only that he worked in excess of the statutory work week (40 hours), but the actual number of excess hours worked.

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A plaintiff must also establish employee status. Independent contractors are not entitled to overtime pay. In determining whether an individual is an employee or an independent contractor for purposes of FLSA issues, courts have approved a hybrid test, which considers the extent of the employer’s right to control the means and manner of the worker’s performance.

Regarding tipped employees, an employer may count some tips toward the employee’s wage. There are two requirements that an employer must meet to claim a tip credit: (1) he must inform the employee of the tip credit; and (2) all tips received by the employee must be retained by the employees. Employers do not have to explain the tip credit to the employees in detail but do have inform them that it exists.

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The FLSA also allows for retaliation claims. Employers faced with FLSA lawsuits should be careful not to retaliate against the employee who is making the claim. A case for FLSA retaliation requires a demonstration by the plaintiff that (1) she engaged in activity protected under the FLSA; (2) she subsequently suffered adverse action by the employer; and (3) a causal connection exists between the employee’s activity and the adverse action. In demonstrating causation, the plaintiff must prove that the adverse action only took place because of an FLSA claim.

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If your business has encountered an FLSA issue, please contact us for a free consult.