March 3, 2023 • 52 mins
Jesse Young joins the first of a 2-part episode to examine the day in the life of a plaintiff. Justin and Jesse go behind the scenes of how Sommers Schwartz serves as an advocate for employees who have fallen victim to unfair workplace practices like unpaid wages. They discuss the details related to class action lawsuits, interrogatories, and dispositions
(Originally aired 7March23)
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Episode Transcript
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S1 (00:00):
The statements expressed in the following program are those of
the speaker. They do not necessarily represent the views and
opinions of the sponsor, the host and or OLAS Media.
S2 (00:10):
OLAS Media.
S1 (00:12):
This is overdue overtime presented by Sommers Schwartz And now
here's your host, Justin Isaac.
S3 (00:21):
Welcome to Overdue Overtime hosted by Sommers Schwartz My name
is Justin Isaac and I will be your guide today.
Thank you for joining us again. This is our second
episode of our podcast series. And what we're talking about
is this is the first part of a two part series,
and we've been calling it A Day in the Life
of a plaintiff, a day in the life of someone
(00:42):
who is bringing a lawsuit or bringing an action. And
we hear about lawsuits all the time in the news.
We don't really hear about the behind the scenes portion,
what really actually goes on and what it's like to
be in that in that process. And Sommers Schwartz is
the sponsor of this show. And on their website, it
does say your Future, our fight. And today I'm joined
(01:05):
by Jesse Young. And Jesse, we have a lot to
talk about, but I wanted to go over that kind
of slogan that you have on the website and what
that means. How does that work in with what we're
talking about when it comes to bringing an action, when
it comes to being a plaintiff in a lawsuit?
S4 (01:21):
Justin, thanks for having me on today. Appreciate it. Looking
forward to discussing all this with you. So your future,
our fight, I mean, that really is the mantra of
our firm. You know, our firm takes on primarily individuals
against companies, corporations and the like. And so really what
(01:43):
that speaks to is, you know, how do you take
on your employer in this context and how do you
go forward and rectify any wrongs that have been done
by your employer in the context of unpaid wages over time,
things of that nature?
S3 (02:03):
So I think that what I like about this slogan
to and just for the listening audience, I'm an attorney
as well. I am based out here in California and
San Diego, but I do estate planning. I don't deal.
This is a completely foreign field of law, and I
know a lot of people are under the impression that
attorneys know everything about every single law, but that's not
(02:24):
necessarily the case. So I do have a my background
is in a different field of law. But what we're
taught in law school is to be a a an
advocate for your client, take on the fight. Now, you
don't want someone to take it personally. You want to
have an attorney who's going to be able to help
(02:44):
and and remove themselves from the emotion. Because as a plaintiff,
you are inherently more emotional. And that's why you have attorneys,
because you're supposed to come in and and just go
by the law. But I like the slogan of our
fight because what it means is Sommers Schwartz is you
guys are taking on the fight with the client. You
are participating not just as an attorney, but you're really
(03:06):
trying to advocate for the client and make sure that
they are compensated or made whole for maybe something that
their employer has kind of taken from them. Is that
is that it sound about right?
S4 (03:18):
Jesse Yeah, sounds exactly right. And you know, I would
add to that, I think, you know, we do we
don't get emotional about these cases. We try not to
take it to that level. But, you know, I would
say we do take it personally on behalf of our clients.
You know, our clients problems become our problems in the case.
(03:38):
And so, you know, what we try to do is
step up for our clients. And in the context of
wage and hour under the Fair Labor Standards Act, you know,
our job is to go back and right or wrong,
to fight for them, to recover the unpaid wages and
to put them to make them whole right, and to
put them back in the position they should have been
(03:59):
in before they called us. Yeah. To come fight for them. So, yeah.
S3 (04:03):
And sorry to interrupt there, but I know you mentioned
the Fair Labor Standards Act and I kind of want
to talk about that. If you can just give us
a quick little summary. It seems like this pertains a
lot to what what you guys deal with on a
daily basis.
S4 (04:18):
So the Fair Labor Standards Act is primarily what we
focus on in our practice group. We have a at
our firm, we have a practice group that's dedicated to
wage and hour issues, again, primarily the Fair Labor Standards Act.
We also deal with state laws that tend to mirror
the Fair Labor Standards Act and just. As a very,
(04:40):
very general overview of the Fair Labor Standards Act. It
protects employees against unpaid wages, including the minimum wage and overtime.
There's really just the two buckets now. There's a lot
that's involved in either the minimum wage or overtime violations,
but that's generally speaking, what the act is designed to protect.
S3 (05:02):
Yeah, that from like a 10,000 foot view gives us
a good idea. Everything really sounds like it goes through
the Fair Labor Standards Act, which is a mouthful in
and of itself, but it seems like everything revolves around that.
And I know that there's a lot of lawsuits. I
love talking about the amount of lawsuits that get filed
(05:24):
every year just in general, but it seems like there
was a lot last year looked at the notes here,
6400 lawsuits filed under the Fair Labor Standards Act last
year alone. That seems like a lot. And I know
that you guys deal with this a lot, too. But
really what it comes down to, I guess, is what
(05:45):
people are hoping to achieve is to hold their employer
accountable for unpaid wages. So let's talk about how does
that work? How can you, through the Fair Labor Standards Act,
how can you hold your employer accountable for unpaid wages?
What does that entail?
S4 (06:03):
Sure. So, yeah, and just to touch on what you
just pointed out, mean the Fair Labor Standards Act has
been it's been in existence since 1938. This is not
a new statute. And, you know, I would say over
the past ten years, you know, we've seen quite an
uptick in these cases, both in the collective action context
(06:26):
and individual cases. And as you pointed out, last year,
we had about 6400 cases on file in federal courts
across the country. We expect probably the same number in
2023 and maybe even more so think there was there
was a little bit of a lull due to COVID. Yeah,
but I think it's ticking back up, you know, higher
(06:48):
and higher every year.
S3 (06:49):
Why do you think we've seen a more recent sharp increase?
Do you think that it is because there's more violations
by employers or they think they can get away with
it or just people are feeling a little bit more
comfortable coming forward? What do you think that might be?
S4 (07:04):
Well, it could be. That's a loaded question. It could
be It could be a lot of things. You know,
it could be employers trying to find a way to
save a buck. It could be, you know, as most
people have heard in the news, there's wage disparity now that's,
you know, becoming a bigger and bigger gap, it seems like,
every year. And so some people are getting fed up
(07:27):
with how much they're getting paid or how they're getting paid.
They might be paying more attention to, you know, overtime
violations or off the clock work or whatever it might be.
It could be any number of things. It could also
be more attorneys, you know, looking to file these kinds
of cases. Yeah, I'm not really sure. But, you know,
(07:48):
certainly the numbers stand for themselves. These cases are being
brought and they're being brought every day.
S3 (07:56):
Yeah, there's. I mean, that's death, taxes and lawsuits. It's
just part of what happens in our society. And United
States is pretty litigious in general. And I'm sure there's
ways to to avoid this or, you know, obviously everyone
tries to avoid this, but say you have a situation
where you've noticed, you know, unpaid wages at work where
(08:18):
you're not getting compensated for some of the hours that
you you have worked. Do you? What's the next step?
What would you recommend for someone to do at that point?
S5 (08:28):
Sure.
S4 (08:29):
Yeah. So, you know, if an employee recognizes at work
that in some way or another, they're not being paid correctly,
whether it be off the clock work or the employer
is just not calculating the the wage correctly or just
flat out and not paying the employee what they're supposed
to be paid. It's always an awkward issue to raise
(08:50):
with the employer, right? Like, you know, we get that
all the time when when clients call in, you know, hey,
don't think I'm being paid correctly. I'm afraid to tell
my boss about it. I'm afraid that what they might do,
you know, I might be I might be fired, I
might be demoted, I might be ridiculed, whatever it might be.
(09:10):
We get that a lot. You know, there's a lot
of a lot of people who are concerned about bringing
unpaid wages up with their employer. And I bet the
number one question I get from clients or potential clients is,
what about retaliation? I'm worried my employer is going to
retaliate against me if I if I complain or make
a stink about this. Um, and so we get that
(09:34):
all the time. And it's important for people to understand
under the Fair Labor Standards Act, there is an anti
retaliation provision built into the statute itself, which basically says
if you complain to your employer about unpaid wages or
if you file a lawsuit or if you testify in
a in a wage, an hour case of any kind,
(09:55):
even if you're not in the case, your employer is
not allowed to retaliate against you under the law. And
if they do, there's a mechanism for the employer to
I'm sorry for the employee to go after the employer for.
You know, for that, whatever that might be, whether that's
a wrongful termination or just a retaliation claim itself. There
(10:18):
are built in protections for employees. If they do raise
this as an issue with your employer.
S3 (10:24):
I think that that is a critical component of this
legislation because if you don't have that in there, you
would not see as many cases there. In my mind,
there's just no way. And that is such an important
thing to know, to ease the mind of a plaintiff
or someone who was thinking about bringing an action that
you are protected. You do have that protection that a
(10:46):
lot of people just don't think you have. And I
think that culturally speaking, we have this mentality where you
just keep working, keep grinding, keep going and don't complain. And,
you know, it's a very old school mentality of how
things work. And I feel like we're kind of turning
the the corner here with this new generation, especially during COVID,
(11:07):
that they are There's a lot more workers who are
standing up for themselves, standing up for the rights. And
I agree that we're probably going to see an uptick
even more in these labor issues because bosses and and,
you know, management tend to be a little bit more
old school and maybe slow to adjust. So having those
(11:28):
having that ability to have a resolution protection from retaliation,
I think it's such a critical component in the whole
process of bringing an action. And so I guess. If
you have this ability to be compensated or have some
(11:51):
kind of protection for retaliation, a lot of people might
think that it's very expensive to hire an attorney, and
it can be. But there's a lot of ways to
make this work. Depending on your situation, depending on the violation.
So what are your thoughts about when someone says, you know,
I don't want to hire an attorney because it's just
(12:11):
so expensive and I don't want to pay out of pocket,
you know, $100,000. I can't afford that. I'm sure you
get that thought a lot or that said to you
a lot.
S4 (12:22):
Yeah, of course. And just to piggyback on one other
thing you said, you know, I think you're right. Nowadays.
I mean, when I was when I was before I
went to law school and I was working and and
a lot of people that are my age, um, you know,
if you complain about wages at work, you probably would
get the response, Well, just suck it up. And this
(12:43):
is how it is. And you know, your complaints would
often just not be even addressed in the first place.
And I think you're right. We're seeing a willingness now
from the younger generations to actually say, you know. This
isn't right. And they're more willing to put their foot
down and stand up and and say, this isn't right.
Think we're seeing that for sure with, you know, our clients.
(13:07):
You know, the younger they are, it seems that the
more willing they are to stand up to corporate America
and and the employer. Um, so, you know, going back
to your immediate question, though, you know, when those complaints
are not addressed by the employer and we get a
phone call or an email from a potential client, also
(13:28):
one of their first questions is how much is this
going to cost me? And and the answer to that
is not much. The Fair Labor Standards Act itself, in
addition to providing for anti retaliation, it also provides that
your attorney's fees and costs are supposed to be paid
by the employer and on a settlement or a judgment
(13:50):
against the employer, the payment of your attorney's fees and
costs are actually covered and they're mandatory to be paid
by the employer under the statute. So, you know, contrary
to what people think and maybe what a lot of
people think about lawyers in general is you don't always
have to pay them by the hour at these hourly rates.
A lot of times statutes like this will cover their
(14:13):
attorney's fees for them.
S3 (14:14):
Yeah. And I think that that is a very common thing.
If you watch suits, you'll see, you know, like Harvey
Specter used to love that show, too. And then it
just got a little bad towards the end. But Harvey
Specter starts off and he's, you know, $1,000 an hour
or something like that. And I actually was just following
there's a case out in England with one of the
soccer teams who has made some kind of violations, and
(14:36):
they are hiring like the top lawyer in the UK
charges £80,000 a day a day. And I thought, wow,
I would love that job because that is well, that's
a nice, nice living, but this is not that type
of situation. Obviously. This is a lot different and we're
(14:58):
not dealing with these these types of violations, especially that
is so specific. But I just I saw that yesterday.
I figured I'd add that in because I just found
that to be amazing. And I definitely am a lawyer
in the wrong country. £80,000 a day is just amazing.
So anyways, yeah, that is a nice thing. A nice
component as well that someone doesn't have to come out
(15:21):
of pocket because I get this a lot too, in
my practice where you know there are certain situations where
people feel aggrieved and they don't necessarily have the money
to do anything about it, which is again, part of
that catch 22 where you don't want to complain because
you might get your hours cut and you can't afford
that in the first place.
S4 (15:41):
Right. And you know, add on top of that, the
most of the people who reach out to us on
these cases are usually low wage workers. Right. These are usually,
you know, people who are making an hourly wage. And
sometimes it's just above the minimum wage. For example, here
in Michigan, the minimum wage is now $10.10 an hour.
So if you have somebody who's making $11 an hour,
(16:03):
you know they're not going to be able to pay
an attorney. Yeah. So that's the whole reason that the
statute provides, you know, for the payment of attorney's fees. So,
you know, these these lower wage workers can have access
to the justice system and access to attorneys who are
actually willing to step up and file a federal lawsuit
if they're owed $500. You know, normally, unless that protection
(16:27):
was in the statute, you know, you would not see
6400 cases filed in a year like we're seeing.
S3 (16:34):
Yeah. And that's such a it's such an interesting thing, too,
because I feel like this all kind of goes in
this one big circle of, you know, I can't afford
to say something, but you technically can't afford not to
say something as well too, because it's just going to
keep on happening. It will probably get worse. And when
(16:54):
you do say something, you have those protections. And I
think that's probably the biggest thing in this show that
we really need to get out to everyone is that
you still have protections if you say something, and so
many people don't know that and you don't have to
come out of pocket for $100,000. It is something that's
all incorporated with which, you know, obviously very specific. And
(17:15):
they need to if someone has something like this, they
have to call you. So you need to call Summer
Schwartz and or go to the website summers.com mers.com And
I am joined by Jesse Young and we're talking about
a day in the life of a plaintiff and we've
kind of jumped over a couple of different things here.
(17:36):
But let's get back into what it's like when we're
starting off as a plaintiff. So if you you've noticed
that you've had these unpaid wages at work and what's
the next thing you do? So you, you consult, you
hire a law firm, you go to summer. Schwartz You
talk to you, Jesse, about this. And how does that
how does that go? What do people experience at that point?
S4 (17:58):
Yeah. Yeah. So typically when you reach out to our firm,
what typically happens is we have we have quite a
bit of staff that are very attentive, very thorough. We
rely on them extensively. The attorneys do to to do
this work. And one of the first people you're going
to speak with when you contact our firm, we have
(18:20):
an intake specialist who will, you know, ask a whole
bunch of questions about your situation, try to get a
feel for what the situation is. And she will ask
for documents such as pay stubs or time records, things
of this nature. And then once she gathers all that
information that information then gets forwarded to the attorneys for review.
(18:45):
You know, once we have it in our hands as
the attorneys, we we do meet pretty regularly every week
or two. And we review all the the new potential
cases that have come in. And we sit down in roundtable,
you know, which cases are interesting, in which cases have merit,
which ones may not have merit. And we use those
(19:05):
meetings to then make decisions on which cases we should take,
in which cases we can't take.
S3 (19:11):
Yeah. And I know just in my firm, having a
good front line for people calling in is so vitally
important because we want to make sure that we're not
wasting someone's time, we're not wasting our own time. And
I imagine your intake specialist gets asked a lot, you know,
do have a good case. Do I? Am I going
(19:33):
to win? Is this a clear cut violation or something
of that nature? And and just for everyone out there
who is thinking about calling a law firm, usually the
first person you talk to cannot give legal advice. They
you probably aren't going to speak to an attorney right
off the bat. And by law and ethical standards, you
are not allowed to give legal advice unless you are
(19:53):
an attorney. And we have to be very careful about
how we talk when we're speaking to someone to. So
this intake specialist, I imagine, plays a vital role in
getting in extracting the most important information. But they also
have to have a soft touch, too, because this is
a very delicate situation. And so after the fact, once
(20:13):
you do the intake, all the attorneys are talking about it.
We figure out or you figure out what's going to
be your your best case or do you have kind
of a hierarchy of cases that you want to move
on to next? Or if one violation goes away or
one potential case goes away, you have one that's on
deck to be pushed forward. Is it kind of a
situation like that or is it just these are our
(20:35):
prime cases and we want to focus just on these
and have to kind of refer the other ones out?
S4 (20:41):
Well, as a combination of that, Justin, it's it's you know,
we obviously keep up on the laws and there's new
opinions being issued every day by the courts, by the
Supreme Court, by the courts of appeals. And we're constantly
monitoring what's going on in the wage and our field.
And so depending on, you know, what's going on, we
(21:04):
we may identify a new set of cases that we
want to pursue that we think is interesting, that we're
seeing a lot of maybe if we see some trends
starting to come in the door, we start to focus
on those a little more. But there's also, you know,
your your what I'll call the tried and true wage.
And our cases, you know, you're off the clock work,
(21:25):
your regular rate calculations. And there's just so many different
kinds that are always going to be in play and
a problem in the workplace. And so, you know, the
best way I can answer that is, you know, we
see all kinds of different cases. We don't particularly focus
on any one type of case. There might be some
(21:47):
trends here and there, but if somebody notices they're not
being paid correctly, they should reach out for sure and
just have their case evaluated. And we're pretty good at
spotting cases.
S3 (21:58):
Yeah. Imagine you have, for lack of a better term,
you know, these kind of slam dunks where it's just
a clear cut violation. There's no ifs, ands or buts
about it. You're not going to go to a jury.
It's going to just be, you know, an easy not easy. Obviously,
they're never easy, but it's just a clear, more clear
violation that allows for a more clear either litigation or settlement.
(22:20):
Do you have anything that comes to mind of just
more like, I like the over-the-top egregious case? Do you
have anything that is just such a clear cut violation
that you almost kind of laughed from it? Anything like
that come to mind?
S5 (22:32):
Oh, sure.
S4 (22:33):
Sure. We just filed one this morning. And so the
one we filed this morning, it's called a regular rate violation.
And essentially what happened in that case and we have
a number of these kinds of cases, but the employer
is supposed to take a shift premium or a shift
differential and calculate that into the overtime rate. And this
(22:56):
is all you can just look at the pay stubs
themselves and figure out if this is a case or not.
And many times the employer gets it wrong and simply
does not make the right calculation and and the employee
is not getting the proper amount of overtime paid to them.
That's the one we just filed this morning. Um, you know,
we see those cases a lot. The other one that
you kind of mentioned that I kind of laugh when
(23:18):
I see it and that's this case. That's where somebody's
working more than 40 hours in a week. Let's say
they work 50 hours in a week and the employer
is just paying them their regular base hourly rate for
the full 50 hours. They're not even trying to pay
him time and a half for their overtime. And again,
you see that right on the pay stubs. Yeah. And so,
(23:39):
you know, when you say, you know, you see one
that kind of makes you chuckle. Yeah. I mean, that's
that's the classic case. And we've had a number of
those cases, to believe it or not. There's employers, sometimes
big employers that just totally screw it up. So, yeah,
they're out there.
S3 (23:54):
I guess this kind of I have a well, as
we're talking about filing a lawsuit and how it works,
my thought immediately as a lawyer would be you're going
to have a lot of employers who will try and
bring into a lawsuit, maybe their their own company or
a secondary company that does their their payroll. A lot
(24:17):
of companies do not do payroll in-house. Most companies don't
would say. And they have a payroll company that helps
out with this. So the first thing I would think
is if anyone came to me, any of my employees
came to me and complained about hourly wages, I would
fix it right away. That's just I like you know,
as an attorney, we're very adverse to lawsuits against ourselves.
(24:39):
So we always want to fix things and make things right.
And I just want to do that as a person
as well. But imagine that a business in general would say, well, no,
my payroll company screwed that up, and I don't think
that that's my fault. Is that a pretty common thing
when we are starting to see lawsuits being filed?
S4 (24:56):
I wouldn't say it's extremely common. I think I've I've
run into that argument before. But, you know, typically, in
my experience anyway, the payroll company is typically just paying
the employees the way the employer is telling them to
pay them. And usually they're relying on the employer's information
and records to pay the employee. So, you know, I've
(25:20):
heard that argument in the past. Usually it doesn't hold up. Yeah.
When we actually examine it. And so, yeah, I'm not
sure that that's a great defense for an employer. It
does come up from time to time. Sure. Yeah.
S3 (25:34):
So when we're we're filing a lawsuit, say we get
past this initial consultation, you meet with the intake specialist
and now we decide, you know what, Summer Schwartz says
you have a good case. If you want to take
it further, we're happy to start with it. And myself
as the plaintiff, I say, okay, let's do it. What
happens next?
S4 (25:52):
Sure. Yeah. So once we identify a case as something
we want to take on, what typically happens is our
paralegals will get involved at that point. And we have
you know, every law firm in America has retainer agreements.
So we have our own, of course. And so we
send that out to the client. Um, the client will
(26:15):
take a look at that, ask any questions they have.
And once we have that retainer agreement signed, that gives
us the green light to go to work, right? We're
now officially hired. We can start drafting the complaint. We
can start really digging into the case and get the
lawsuit ready to file. Um, you know, as part of
(26:35):
that whole process, we've got to figure out what claims
are we actually bringing? You know, do we have the
fair labor standards that claim? Do we have any state
law claims that are similar that need to be brought
and that, you know, that all depends on where the
employee worked typically. And, you know, so we'll evaluate that.
And then we also need to evaluate at the same time,
you know, where are we filing what makes sense or
(26:57):
where do we have to file? Right? And that's usually
the state or the federal court where the employee actually worked.
S3 (27:04):
It's so interesting to in this this is something I
wanted to bring up about what you do there. A
lot of people don't know or just fail to recognize
that there is a vast amount of federal law. And
then you have to also have your state law. And
compliance in both is a rather tricky thing. And so
(27:25):
if you have a situation like this where you can
file in federal court or state court or both, even,
you have to be very well versed in so many
different things that come up. And I my practice estate planning,
I'd just deal with state court. I don't do any federal,
which is, you know, feel very blessed for that. But
(27:45):
at the same time, having a a federal standard and
in most of the states you said kind of mirror
the federal legislation. But there's got to be nuances here
and there. So what would be the advantage? Just, you know,
a quick off the top of your head, if you could,
for filing in state versus federal is one easier to navigate?
Is one a little bit more expeditious and quicker, or
(28:09):
are they both kind of the same?
S4 (28:11):
Well, it's it depends what state you're in. Yeah. Think
the biggest driver of of the answer to that question
is going to be the state statute that you're looking at.
I mean, some state statutes provide greater protections than the
Fair Labor Standards Act. For example, California is the notorious
employee friendly state. Right. And so, you know, when you
(28:33):
file a complaint in California, you're always, you know, looking
at the state claims in California, because there's so many
of them versus just the one federal claim. And so.
There's other states that are similar to that. You know,
I think we filed quite a few in Nevada and
Illinois and some other states that are, you know, the
state statutes are just more protective than the federal statute.
(28:56):
And so, you know, that's probably the biggest driver of
of the answer to that question, I think.
S3 (29:01):
Okay. Yeah. So more state specific. And that's a typical
lawyer answer for everyone listening to. It depends.
S4 (29:08):
Well, let me let me add to that, too. If
we're in a state because some state statutes, like, for example,
in Michigan, the overtime statute. Almost as identical, if not identical,
to the Fair Labor Standards Act. So when you bring
a a claim for overtime in Michigan, you you really
can't bring the state statute because it's preempted by the
(29:29):
federal statute. Yeah, that makes sense. Yeah. So in Michigan,
if you're filing an overtime claim, unless there's some strange circumstance,
you're going to be filing in federal court.
S3 (29:38):
Yeah, that makes sense. Yeah, the it depends thing. I'm
sure if you had a dollar for every time you
said that, you probably be a multimillionaire. That's a such
a lawyer like answer. But we have to say that
to as I mentioned, we have to be very careful
about what we say because context matters with our response
for everything that we say.
S4 (29:59):
And it really does depend mean it is absolutely true.
It depends on a lot of things.
S3 (30:04):
It's not a dismissal. Just that's that's the main thing
to know is that we are not dismissing or trying
to avoid what you're saying, but it actually does depend.
So yeah. So anyways, back to kind of what we're
talking about. And just to recap, we're talking about a
day in the life of a plaintiff of a lawsuit
(30:24):
being brought against your employer. And I'm joined by Jesse
Young of Summer Schwartz, and we're going to give out
all the information of how to reach out to some
Schwartz in just a little bit as well, too, because
I'm sure there's a lot of people who are thinking,
all right, I'm with you so far. We're we've got
to the the point where I noticed that I don't
have some of my wages on my paycheck. I'm ready
(30:47):
to hire a law firm. I've talked to the Summer
Schwartz intake specialist and ready to file a suit When
we get to a point now where we're looking at
this and we're saying, okay, should I just be going
on my own or should I be filing as a
class like a class action? And I you know, I
remember going over class actions in pro back in law
(31:07):
school and it gives me a little bit of PTSD
talking about this. So let's let's go easy if we could.
But it's I'm sure this is a very common question
and it's something you have to evaluate which could change
the whole dynamic of of the way the case goes.
S4 (31:22):
Oh, for sure. So we always we always look at
whether the case should be an individual case or a
class or collective action. And, you know, the difference between
a class action and a collective action is a real thing,
and that's probably its own podcast. So I'm not going
to bore everybody with that explanation, but it's there similar things.
(31:43):
But so sometimes we have potential clients who say, Look,
this is only happening to me. I'm not aware that
this is happening to anybody else. This is, you know,
my situation and I want to go forward as an individual.
And and that's fine. And that's how we will tackle
the case. Other times we'll have potential clients come to
(32:05):
us and say, hey, this is happening to me. I'm
not getting paid correctly for whatever reason. And by the way,
this is also happening to 20 of my best friends
at work. And so think it's happening to everybody. And
so in that situation, it might make more sense to
bring the case as a collective action or a class
action on behalf of the whole group of people that
(32:28):
are being affected. Yeah. And the way these cases work
is you can just have one plaintiff file the case
and move forward as a representative action. And that one
plaintiff would then represent all of the workers who are
similarly situated at the company. In other words, if they're
all being paid the same way or being paid incorrectly
(32:49):
in the same way, then that case can proceed as
a class or collective action. So we're always evaluating that
as well. You know, not only what claims or what court,
but how is this case going to proceed? Is it
going to be an individual case or a class action?
S3 (33:04):
So I think that just as an example of what
it might be like, if I come to you and
I say, Jessie, listen, I look at my my paycheck
and you say, Justin, do you think anyone else is
having a situation like this where they're not being paid?
Would you send me back to some of the other
employees to ask or would you say, you know, let's
(33:26):
let's reach out to them? I know that, ethically speaking,
where we have some limitations of what we're allowed to do,
but if we're trying to investigate whether it's a class
or a single situation, what would be the next step there?
Because I would find that pretty interesting. As the plaintiff,
do you send me back out to us and start
gathering names and information and asking people or are you,
(33:48):
you know, kind of facilitating these questions on your own?
S5 (33:52):
Right.
S4 (33:53):
So that's a that's a great question. So typically. When
a potential client says, Hey, this is happening to me
in 20 of my best friends or whatever, um, they will,
you know, offer up other people that want to speak
with us. And so, you know, we'll speak with them too,
and collect their documents. And, you know, if it's appropriate,
(34:15):
we'll have them join the case at the outset. Yeah. Um,
you know, other times somebody will come to us and say,
you know, I don't know that this is happening to
anybody else, but it's happening to me, and I think
it's probably happening to everybody else at the company just
the way, you know, from what I've seen in my
experiences and working there. Now we have as if if
(34:37):
we're going to bring the case as a class action
on that basis. And we think this is a company
wide practice and it's a company wide problem. As class
counsel for the case, we actually have a duty to
investigate whether this makes sense as a class action. So
we might in certain circumstances ask the client, Hey, can
(34:59):
you talk to one of your coworkers and have them
speak with us just about, you know, what their experience is,
that as a company, we just want to ask them questions,
investigate what's actually going on. If their experience is similar
and that gives us the confidence to say, Yeah, this
should be a class action and you know, we can
go ahead and take our one plaintiff and file the
(35:20):
case as a representative action and we'll have the confidence
to know that we think this is actually happening to everybody. Yeah.
S5 (35:27):
So.
S3 (35:28):
Yeah, yeah. So I was going to say that that
brings into a completely different situation where you have the
duty to inform people and let them know that there
could have been violations that they don't even know about.
So you're able to reach out to them. And I
remember I've gotten these, um, class action placards that say,
you know, you were part of this group that, you know,
you could be owed X amount of dollars for this violation. Um,
(35:52):
and that, that makes a lot of sense too, because
it's kind of, as an officer of the court, I
guess the court's duty here is to and especially that
legislation is to we want to make sure that we
are are compensating people who have been aggrieved through the
Fair Labor Standards Act. And and so it would be
in the best interest of the court of the legislation
(36:15):
of the, you know, of the state or federal government
to make sure that everyone knows that they they could
be qualified for something like this, too. Oh, absolutely. Yeah,
that that's interesting.
S4 (36:27):
Yeah. And so so one of the things one of
the first things that we do with our client in
a in a wage in our collective action or a
class action is we will file a motion with the
court and we will ask the court, hey, we think
we need to send a notice to everybody who works
at the company or who has worked in the company
for the past three years. You can go back three
(36:48):
years under the statute. And, you know, Judge, we think
we ought to be able to send out this notice
to all the employees, let them know that this case
is pending, give them a chance to join the case
if they want to. And as part of that motion,
the representative plaintiff, the original person who came to us,
(37:09):
will need to work with us to to create a
declaration or an affidavit that we can submit to the court.
And that affidavit basically tells the judge, Hey, I'm Jane Doe.
I've worked at the company for X number of years.
This is what I've seen. This is what's happening to me.
Think it's happening to other people based on what I've seen.
(37:31):
And that affidavit gets filed with a motion in support
of the motion and where we ask the judge to
send out the notice. Yeah. So that declaration takes a
little bit of effort from the client to help us
draft that declaration. And we've got to make sure it's
it's very accurate factually. And it's not it's not based
(37:52):
on speculation. Right. This has got to be something that's
personal knowledge to our client, right?
S3 (37:57):
Yeah. That makes a lot of sense to and it's
in the best interest of the individual and all others
who have been aggrieved to bring forward a class action.
I at least imagine I'm maybe this is more of
a question when you have people who are claiming that
an employer has done something wrong, that should, in my mind,
hold a lot more weight than just one person who's
(38:18):
making a claim against an employer. Is that correct?
S4 (38:21):
That's absolutely correct. So, you know, always say there's power numbers, right?
Everybody's heard that term. And when you show up at
the courthouse with 20 people and they're all claiming that
they're not paid correctly for the same reasons or very
similar reasons, that's that holds a lot more power than
just one person showing up and saying they want to
start a class action. Yeah, not to say that that's
(38:42):
not powerful, but when you have 20 people saying the
same thing, yeah, in my experience, the employer's got to
take that much more seriously. Yeah. Than they otherwise would.
S3 (38:52):
When there's, when there's smoke, there's fire. And obviously it
doesn't mean that someone is guilty, but it's. When you
have someone, a lot of different people making the exact
same claim, well, that's something you probably want to investigate
and get into it. And once you get into this
process now say we we are certified as a class
or even as an individual. And what's the next step
(39:13):
once that say, actually, let's let's go back to Jane Doe.
And she's filing this motion with her affidavit, speaking about
what she's seen in her workplace and what the employer
might be doing, What happens next? Say we get certified
as a class. Do we get we get on calendar
and then go straight to some kind of mediation or
(39:35):
are we going to try and work things out? Or
is this like the collection process of all paperwork? How
does it work from there?
S4 (39:41):
Sure. So if that motion gets granted and the judge
allows us to send out the notice to everybody, usually
there's a 30 or 60 or maybe even 90 day
period for employees at the company to join the case.
S5 (39:55):
Okay.
S4 (39:55):
And so all they have to do is submit this
one page form and they join the case. And at
the deadline, you'll know how many people are in your case.
And so once you know how many people are going
to be in the case moving forward, then that makes
sense to go ahead and create a case schedule for
the case. And so what happens is the court will
set a scheduling conference. The client may or may not
(40:17):
need to attend that with us. Usually not, but sometimes.
And you know, we'll work with the other side, with
the attorneys for the company and create some kind of
a discovery schedule for the case to proceed with discovery.
S3 (40:32):
And so this is the part where you see on
TV and movies where you have boxes and boxes of
documents being brought in, and that's where you and your
staff at Summer Schwartz are going to start looking through
all the paperwork and trying to find the violations, get
a good, clear cut understanding of all the evidence, and
really present your case based on that. Is that correct?
S4 (40:54):
Yeah, that's correct. And so this is really where the
plaintiff or our client has to do the most work
in the case. And the discovery process. And so the
way this typically works is you'll have a couple forms
of discovery. You'll have what we call written discovery, and
then we'll have depositions and. Talking about the written discovery
(41:16):
for a moment. So the written discovery basically is the
parties chance to ask each other questions and request documents
and other information through written papers. And so there's a
couple of things. One is the interrogators and what an
interrogator is, if you don't know, is written questions sent
(41:36):
to the other side that they have to answer under oath.
And so what happens is the employer will send 2025
interrogatories to our client and our client is going to
have to work with our paralegals to go through those
questions and answer them to the best of their ability.
And at the end, once we have all the answers
how we like them and, you know, truthful and thorough,
(42:00):
the client will then need to sign off on those
interrogatories and swear that they're true and to the best
of their knowledge, accurate. Yeah. And we also get a
chance to do that with defendant, right? So we get
to send a similar document to the employer with our
questions and they have to the same thing for us.
So that's one piece of the written discovery and that's
(42:24):
that's usually somewhat time intensive for the client, but it's
not bad. Our paralegals are very good at making that
a very efficient process, making it as easy as possible
for our clients to get through that. It's really not
too bad. And the second big part of the written
discovery is the request for documents. And so of course
(42:45):
we get to send requests for documents to the employer
requesting pay stubs, time records, policies, those kinds of things.
And then the employer will likewise get to send a
request for documents to our clients. And, you know, again,
our clients will work with our paralegals to pull together
any documents that they have, which, you know, usually in
(43:07):
my experience is not nearly a complete set of documents,
at least compared to what the employer has. But we
have an obligation to produce those. So the our client
will be, you know, asked and expected to go through,
you know, all the places where they could have these
documents and at least look for them and then produce
anything that they have to our office. And then we'll
(43:28):
go ahead and send those over to the employer.
S3 (43:31):
I strive to be organized, but I'm not the most organized.
Like what this what you're explaining there, I imagine you
need someone who is extremely organized and can kind of
catalog everything in a very nice, neat and orderly way. Um,
and I'm very lucky at my firm that I have
staff that help me with that as well too, and
(43:53):
also my wife. But it's such an important thing to
get all these things because this tells the story. This
is the this is where in my mind where everything
comes from, where the basis of the litigation comes from.
And it really tells the story of the case. And
where you come in after that is to explain here
(44:15):
is all the evidence of the violations. And this is
why we're going to win. And so you need to
have that kind of organization to make sure that it
does explain exactly what the employer did. But I imagine
it's just so much paperwork a lot of the times
that it just kind of makes your head spin.
S4 (44:35):
It certainly can be depending on the size of the
employer and the size of the the class. You know,
some of these cases can be very, very complicated and
very document intensive. And so, you know, thankfully at our firm,
we're blessed to have a great staff. We've got numerous paralegals,
(44:56):
legal assistance, intake specialists, associate attorneys, partners. We have a
whole team of people that, you know, take care to
go through all these documents and make sure we understand
what's going on in the case, make sure nothing gets missed. Um,
you know, also to help our clients, you know, sometimes
we have clients that have lots of documents. And so,
(45:19):
you know, our staff is very helpful in helping our
own clients, you know, sort through their own documents so
we can produce what's relevant and and responsive and discovery
and so. You know, you really do need a good
team of people to go through this process, including the
interrogative and the request to produce. And I think we
(45:41):
have that.
S3 (45:43):
So at this point, Jesse, once we get to the
written discovery, we do the interrogatories. We answer all these questions.
We move on to the next step, which is depositions.
Is that right?
S5 (45:57):
Right.
S4 (45:57):
So once the parties have all the written discovery in place,
then we can move on to depositions. So just very quickly,
depositions are. It's an event in the case where you
sit down and actually get to ask the other side
questions in person. And that person or the witness is
under oath while you get to ask these questions.
S5 (46:19):
And so.
S4 (46:20):
You know, from from our perspective, we typically like to
take depositions of the company employees, including, you know, we
might get a company representative to come in and speak
as to the policy and practices at the company. We
might get some supervisors in, ask them questions about the
actual day to day activities, you know, on the floor
(46:42):
or in the office or whatever the case might be.
And sometimes we'll even bring in the HR people or
the payroll staff and ask them questions about how they
do payroll in the company. And, you know, these are
very important pieces of the case because this is your
chance to actually ask the employer under oath certain questions
(47:03):
about the case. And, you know, you're making a record
of that testimony under oath so that, you know, if
you go to trial in the case, you know what
the other side's going to say at trial. And if
they deviate at trial, you'll have this other record you
can kind of point back to and and ask them
why their answers are different or whatnot. Yeah.
S3 (47:23):
So you have it's kind of like a three part
thing for trial or at least two parts where you
can say, all right, I have these interrogatories and you
can use those in the deposition to say, Well, why
did you answer this way? And let them kind of
expound on that. And then you get into trial where
you can have a very similar situation, where you have
maybe someone who's contradicting themselves on an interrogatory or the deposition.
S4 (47:47):
Right. All right. And the documents, you know, we'll put
documents in front of them in the depositions. Have them
answer questions about the documents. And it has the same
effect at trial. You know, their answers are going to
are going to be relevant when it goes to trial. Yeah.
And so, you know, our clients are very we rely
on our clients a lot for those depositions. So, you know,
(48:07):
our clients are going to be in touch with us
to talk about, you know, maybe some of the questions
we should be asking about the company and how it operates.
And maybe the supervisor was your direct supervisor. And we're
going to want to know everything we can know about
that supervisor from our own client. So our clients are
going to be involved to some extent in the deposition process,
and we're going to have to talk with them and
(48:29):
get as much information as we can. Yeah. And you know,
on the flip side of that, and my partner, Jason Thompson,
we'll talk about this in the next part of this podcast.
Our own client has to sit for a deposition, right?
And so, you know, there's a whole preparation for that
and a whole process for that. And in my opinion,
(48:51):
the plaintiff's deposition is probably the most important event in
the entire case. So I'll let Jason go into that.
I won't steal his thunder, but, you know, Jason will.
We'll be on with you, I think, in the next
week or two to talk to you about that. And
I'll let him explain that and how that works. But,
you know, a very important part of the discovery process
(49:13):
for sure.
S3 (49:14):
Yeah. And we're not even what would you say this
is at this point? This is maybe halfway through the
process or not even halfway through, because so many different
things can happen that it could really swing the case
one way or another, especially if we go to trial.
S4 (49:28):
Sure. Yeah. Yeah. The depositions, you know, are usually a
turning point in the case. You know, that really opens
up everybody's eyes as to what the testimony is going
to be for trial. Right. So, you know, at that point,
you have a chance to resolve the case one way
or another. Um, but again, I think Jason's going to
speak with you about that stuff and I'll let him
(49:48):
do that.
S3 (49:49):
There's there's so much information that, you know, being only
halfway through, I'm really excited to hear the second part
of this and go over the second part of this.
On how how how it is to be a plaintiff
in a lawsuit against your employer and day in the
life of the whole process. And when Jason Thompson is
coming up on the next episode in a couple of weeks.
(50:10):
So we're going to be talking about not just positions,
but also mediation and and how the case can ultimately
play out and hopefully avoid trial, because that would be
ideal for most people. But sometimes it ends up going
to trial. And we need all of this front end
work to be done in order to ensure that you
(50:31):
have the best chance possible at trial. So this is
it's been a great, great and very informative show. Thank you, Jesse.
I really appreciate joining us for to talk about all
this information.
S4 (50:44):
My pleasure. It's very nice to speak with you today.
I'm looking forward to coming back again sometime. Thanks a lot. Yeah.
S3 (50:50):
I can't wait. Once again, my name is Justin Isaac
and this is Overdue Over time. Presented by Sommers Schwartz,
This has been a day in the life of a
plaintiff Part one, and we are going to be speaking
in a couple of weeks about a day in the
life of a plaintiff Part two and how the rest
of this case might actually come about. If you do
(51:10):
have a claim, if you think you have a claim,
you should definitely go check out Sommers Schwartz at Sommers
PC .com for more information or to speak with one
of those intake specialists that we were talking about. And
hopefully if you do have a claim, you can talk
to Jesse and figure out how to best be compensated
(51:35):
and take it from there. So thank you again for
everyone who listened. Again, this is our second podcast of
Overdue Overtime. My name is Justin Isaac and we'll see
you in a couple of weeks.
S6 (51:52):
If you have comments, questions and show ideas, visit Sommers
PC dot Com. Overdue Overtime is produced at the IVC Media
Lab in San Diego, California. Your host is Justin Isaac,
and Jessica Garcia serves as general manager, while Elia Ramos
is the creative director. Lina Alvarez assists with production and
Chad Peace is president and founding partner. Over time. This
(52:17):
has been a presentation of Sommers Schwartz on the oldest
media network.
S2 (52:22):
Olsd media.
The statements expressed in the following program are those of
the speaker. They do not necessarily represent the views and
opinions of the sponsor, the host and or OLAS Media.
S2 (00:10):
OLAS Media.
S1 (00:12):
This is overdue overtime presented by Sommers Schwartz And now
here's your host, Justin Isaac.
S3 (00:21):
Welcome to Overdue Overtime hosted by Sommers Schwartz My name
is Justin Isaac and I will be your guide today.
Thank you for joining us again. This is our second
episode of our podcast series. And what we're talking about
is this is the first part of a two part series,
and we've been calling it A Day in the Life
of a plaintiff, a day in the life of someone
(00:42):
who is bringing a lawsuit or bringing an action. And
we hear about lawsuits all the time in the news.
We don't really hear about the behind the scenes portion,
what really actually goes on and what it's like to
be in that in that process. And Sommers Schwartz is
the sponsor of this show. And on their website, it
does say your Future, our fight. And today I'm joined
(01:05):
by Jesse Young. And Jesse, we have a lot to
talk about, but I wanted to go over that kind
of slogan that you have on the website and what
that means. How does that work in with what we're
talking about when it comes to bringing an action, when
it comes to being a plaintiff in a lawsuit?
S4 (01:21):
Justin, thanks for having me on today. Appreciate it. Looking
forward to discussing all this with you. So your future,
our fight, I mean, that really is the mantra of
our firm. You know, our firm takes on primarily individuals
against companies, corporations and the like. And so really what
(01:43):
that speaks to is, you know, how do you take
on your employer in this context and how do you
go forward and rectify any wrongs that have been done
by your employer in the context of unpaid wages over time,
things of that nature?
S3 (02:03):
So I think that what I like about this slogan
to and just for the listening audience, I'm an attorney
as well. I am based out here in California and
San Diego, but I do estate planning. I don't deal.
This is a completely foreign field of law, and I
know a lot of people are under the impression that
attorneys know everything about every single law, but that's not
(02:24):
necessarily the case. So I do have a my background
is in a different field of law. But what we're
taught in law school is to be a a an
advocate for your client, take on the fight. Now, you
don't want someone to take it personally. You want to
have an attorney who's going to be able to help
(02:44):
and and remove themselves from the emotion. Because as a plaintiff,
you are inherently more emotional. And that's why you have attorneys,
because you're supposed to come in and and just go
by the law. But I like the slogan of our
fight because what it means is Sommers Schwartz is you
guys are taking on the fight with the client. You
are participating not just as an attorney, but you're really
(03:06):
trying to advocate for the client and make sure that
they are compensated or made whole for maybe something that
their employer has kind of taken from them. Is that
is that it sound about right?
S4 (03:18):
Jesse Yeah, sounds exactly right. And you know, I would
add to that, I think, you know, we do we
don't get emotional about these cases. We try not to
take it to that level. But, you know, I would
say we do take it personally on behalf of our clients.
You know, our clients problems become our problems in the case.
(03:38):
And so, you know, what we try to do is
step up for our clients. And in the context of
wage and hour under the Fair Labor Standards Act, you know,
our job is to go back and right or wrong,
to fight for them, to recover the unpaid wages and
to put them to make them whole right, and to
put them back in the position they should have been
(03:59):
in before they called us. Yeah. To come fight for them. So, yeah.
S3 (04:03):
And sorry to interrupt there, but I know you mentioned
the Fair Labor Standards Act and I kind of want
to talk about that. If you can just give us
a quick little summary. It seems like this pertains a
lot to what what you guys deal with on a
daily basis.
S4 (04:18):
So the Fair Labor Standards Act is primarily what we
focus on in our practice group. We have a at
our firm, we have a practice group that's dedicated to
wage and hour issues, again, primarily the Fair Labor Standards Act.
We also deal with state laws that tend to mirror
the Fair Labor Standards Act and just. As a very,
(04:40):
very general overview of the Fair Labor Standards Act. It
protects employees against unpaid wages, including the minimum wage and overtime.
There's really just the two buckets now. There's a lot
that's involved in either the minimum wage or overtime violations,
but that's generally speaking, what the act is designed to protect.
S3 (05:02):
Yeah, that from like a 10,000 foot view gives us
a good idea. Everything really sounds like it goes through
the Fair Labor Standards Act, which is a mouthful in
and of itself, but it seems like everything revolves around that.
And I know that there's a lot of lawsuits. I
love talking about the amount of lawsuits that get filed
(05:24):
every year just in general, but it seems like there
was a lot last year looked at the notes here,
6400 lawsuits filed under the Fair Labor Standards Act last
year alone. That seems like a lot. And I know
that you guys deal with this a lot, too. But
really what it comes down to, I guess, is what
(05:45):
people are hoping to achieve is to hold their employer
accountable for unpaid wages. So let's talk about how does
that work? How can you, through the Fair Labor Standards Act,
how can you hold your employer accountable for unpaid wages?
What does that entail?
S4 (06:03):
Sure. So, yeah, and just to touch on what you
just pointed out, mean the Fair Labor Standards Act has
been it's been in existence since 1938. This is not
a new statute. And, you know, I would say over
the past ten years, you know, we've seen quite an
uptick in these cases, both in the collective action context
(06:26):
and individual cases. And as you pointed out, last year,
we had about 6400 cases on file in federal courts
across the country. We expect probably the same number in
2023 and maybe even more so think there was there
was a little bit of a lull due to COVID. Yeah,
but I think it's ticking back up, you know, higher
(06:48):
and higher every year.
S3 (06:49):
Why do you think we've seen a more recent sharp increase?
Do you think that it is because there's more violations
by employers or they think they can get away with
it or just people are feeling a little bit more
comfortable coming forward? What do you think that might be?
S4 (07:04):
Well, it could be. That's a loaded question. It could
be It could be a lot of things. You know,
it could be employers trying to find a way to
save a buck. It could be, you know, as most
people have heard in the news, there's wage disparity now that's,
you know, becoming a bigger and bigger gap, it seems like,
every year. And so some people are getting fed up
(07:27):
with how much they're getting paid or how they're getting paid.
They might be paying more attention to, you know, overtime
violations or off the clock work or whatever it might be.
It could be any number of things. It could also
be more attorneys, you know, looking to file these kinds
of cases. Yeah, I'm not really sure. But, you know,
(07:48):
certainly the numbers stand for themselves. These cases are being
brought and they're being brought every day.
S3 (07:56):
Yeah, there's. I mean, that's death, taxes and lawsuits. It's
just part of what happens in our society. And United
States is pretty litigious in general. And I'm sure there's
ways to to avoid this or, you know, obviously everyone
tries to avoid this, but say you have a situation
where you've noticed, you know, unpaid wages at work where
(08:18):
you're not getting compensated for some of the hours that
you you have worked. Do you? What's the next step?
What would you recommend for someone to do at that point?
S5 (08:28):
Sure.
S4 (08:29):
Yeah. So, you know, if an employee recognizes at work
that in some way or another, they're not being paid correctly,
whether it be off the clock work or the employer
is just not calculating the the wage correctly or just
flat out and not paying the employee what they're supposed
to be paid. It's always an awkward issue to raise
(08:50):
with the employer, right? Like, you know, we get that
all the time when when clients call in, you know, hey,
don't think I'm being paid correctly. I'm afraid to tell
my boss about it. I'm afraid that what they might do,
you know, I might be I might be fired, I
might be demoted, I might be ridiculed, whatever it might be.
(09:10):
We get that a lot. You know, there's a lot
of a lot of people who are concerned about bringing
unpaid wages up with their employer. And I bet the
number one question I get from clients or potential clients is,
what about retaliation? I'm worried my employer is going to
retaliate against me if I if I complain or make
a stink about this. Um, and so we get that
(09:34):
all the time. And it's important for people to understand
under the Fair Labor Standards Act, there is an anti
retaliation provision built into the statute itself, which basically says
if you complain to your employer about unpaid wages or
if you file a lawsuit or if you testify in
a in a wage, an hour case of any kind,
(09:55):
even if you're not in the case, your employer is
not allowed to retaliate against you under the law. And
if they do, there's a mechanism for the employer to
I'm sorry for the employee to go after the employer for.
You know, for that, whatever that might be, whether that's
a wrongful termination or just a retaliation claim itself. There
(10:18):
are built in protections for employees. If they do raise
this as an issue with your employer.
S3 (10:24):
I think that that is a critical component of this
legislation because if you don't have that in there, you
would not see as many cases there. In my mind,
there's just no way. And that is such an important
thing to know, to ease the mind of a plaintiff
or someone who was thinking about bringing an action that
you are protected. You do have that protection that a
(10:46):
lot of people just don't think you have. And I
think that culturally speaking, we have this mentality where you
just keep working, keep grinding, keep going and don't complain. And,
you know, it's a very old school mentality of how
things work. And I feel like we're kind of turning
the the corner here with this new generation, especially during COVID,
(11:07):
that they are There's a lot more workers who are
standing up for themselves, standing up for the rights. And
I agree that we're probably going to see an uptick
even more in these labor issues because bosses and and,
you know, management tend to be a little bit more
old school and maybe slow to adjust. So having those
(11:28):
having that ability to have a resolution protection from retaliation,
I think it's such a critical component in the whole
process of bringing an action. And so I guess. If
you have this ability to be compensated or have some
(11:51):
kind of protection for retaliation, a lot of people might
think that it's very expensive to hire an attorney, and
it can be. But there's a lot of ways to
make this work. Depending on your situation, depending on the violation.
So what are your thoughts about when someone says, you know,
I don't want to hire an attorney because it's just
(12:11):
so expensive and I don't want to pay out of pocket,
you know, $100,000. I can't afford that. I'm sure you
get that thought a lot or that said to you
a lot.
S4 (12:22):
Yeah, of course. And just to piggyback on one other
thing you said, you know, I think you're right. Nowadays.
I mean, when I was when I was before I
went to law school and I was working and and
a lot of people that are my age, um, you know,
if you complain about wages at work, you probably would
get the response, Well, just suck it up. And this
(12:43):
is how it is. And you know, your complaints would
often just not be even addressed in the first place.
And I think you're right. We're seeing a willingness now
from the younger generations to actually say, you know. This
isn't right. And they're more willing to put their foot
down and stand up and and say, this isn't right.
Think we're seeing that for sure with, you know, our clients.
(13:07):
You know, the younger they are, it seems that the
more willing they are to stand up to corporate America
and and the employer. Um, so, you know, going back
to your immediate question, though, you know, when those complaints
are not addressed by the employer and we get a
phone call or an email from a potential client, also
(13:28):
one of their first questions is how much is this
going to cost me? And and the answer to that
is not much. The Fair Labor Standards Act itself, in
addition to providing for anti retaliation, it also provides that
your attorney's fees and costs are supposed to be paid
by the employer and on a settlement or a judgment
(13:50):
against the employer, the payment of your attorney's fees and
costs are actually covered and they're mandatory to be paid
by the employer under the statute. So, you know, contrary
to what people think and maybe what a lot of
people think about lawyers in general is you don't always
have to pay them by the hour at these hourly rates.
A lot of times statutes like this will cover their
(14:13):
attorney's fees for them.
S3 (14:14):
Yeah. And I think that that is a very common thing.
If you watch suits, you'll see, you know, like Harvey
Specter used to love that show, too. And then it
just got a little bad towards the end. But Harvey
Specter starts off and he's, you know, $1,000 an hour
or something like that. And I actually was just following
there's a case out in England with one of the
soccer teams who has made some kind of violations, and
(14:36):
they are hiring like the top lawyer in the UK
charges £80,000 a day a day. And I thought, wow,
I would love that job because that is well, that's
a nice, nice living, but this is not that type
of situation. Obviously. This is a lot different and we're
(14:58):
not dealing with these these types of violations, especially that
is so specific. But I just I saw that yesterday.
I figured I'd add that in because I just found
that to be amazing. And I definitely am a lawyer
in the wrong country. £80,000 a day is just amazing.
So anyways, yeah, that is a nice thing. A nice
component as well that someone doesn't have to come out
(15:21):
of pocket because I get this a lot too, in
my practice where you know there are certain situations where
people feel aggrieved and they don't necessarily have the money
to do anything about it, which is again, part of
that catch 22 where you don't want to complain because
you might get your hours cut and you can't afford
that in the first place.
S4 (15:41):
Right. And you know, add on top of that, the
most of the people who reach out to us on
these cases are usually low wage workers. Right. These are usually,
you know, people who are making an hourly wage. And
sometimes it's just above the minimum wage. For example, here
in Michigan, the minimum wage is now $10.10 an hour.
So if you have somebody who's making $11 an hour,
(16:03):
you know they're not going to be able to pay
an attorney. Yeah. So that's the whole reason that the
statute provides, you know, for the payment of attorney's fees. So,
you know, these these lower wage workers can have access
to the justice system and access to attorneys who are
actually willing to step up and file a federal lawsuit
if they're owed $500. You know, normally, unless that protection
(16:27):
was in the statute, you know, you would not see
6400 cases filed in a year like we're seeing.
S3 (16:34):
Yeah. And that's such a it's such an interesting thing, too,
because I feel like this all kind of goes in
this one big circle of, you know, I can't afford
to say something, but you technically can't afford not to
say something as well too, because it's just going to
keep on happening. It will probably get worse. And when
(16:54):
you do say something, you have those protections. And I
think that's probably the biggest thing in this show that
we really need to get out to everyone is that
you still have protections if you say something, and so
many people don't know that and you don't have to
come out of pocket for $100,000. It is something that's
all incorporated with which, you know, obviously very specific. And
(17:15):
they need to if someone has something like this, they
have to call you. So you need to call Summer
Schwartz and or go to the website summers.com mers.com And
I am joined by Jesse Young and we're talking about
a day in the life of a plaintiff and we've
kind of jumped over a couple of different things here.
(17:36):
But let's get back into what it's like when we're
starting off as a plaintiff. So if you you've noticed
that you've had these unpaid wages at work and what's
the next thing you do? So you, you consult, you
hire a law firm, you go to summer. Schwartz You
talk to you, Jesse, about this. And how does that
how does that go? What do people experience at that point?
S4 (17:58):
Yeah. Yeah. So typically when you reach out to our firm,
what typically happens is we have we have quite a
bit of staff that are very attentive, very thorough. We
rely on them extensively. The attorneys do to to do
this work. And one of the first people you're going
to speak with when you contact our firm, we have
(18:20):
an intake specialist who will, you know, ask a whole
bunch of questions about your situation, try to get a
feel for what the situation is. And she will ask
for documents such as pay stubs or time records, things
of this nature. And then once she gathers all that
information that information then gets forwarded to the attorneys for review.
(18:45):
You know, once we have it in our hands as
the attorneys, we we do meet pretty regularly every week
or two. And we review all the the new potential
cases that have come in. And we sit down in roundtable,
you know, which cases are interesting, in which cases have merit,
which ones may not have merit. And we use those
(19:05):
meetings to then make decisions on which cases we should take,
in which cases we can't take.
S3 (19:11):
Yeah. And I know just in my firm, having a
good front line for people calling in is so vitally
important because we want to make sure that we're not
wasting someone's time, we're not wasting our own time. And
I imagine your intake specialist gets asked a lot, you know,
do have a good case. Do I? Am I going
(19:33):
to win? Is this a clear cut violation or something
of that nature? And and just for everyone out there
who is thinking about calling a law firm, usually the
first person you talk to cannot give legal advice. They
you probably aren't going to speak to an attorney right
off the bat. And by law and ethical standards, you
are not allowed to give legal advice unless you are
(19:53):
an attorney. And we have to be very careful about
how we talk when we're speaking to someone to. So
this intake specialist, I imagine, plays a vital role in
getting in extracting the most important information. But they also
have to have a soft touch, too, because this is
a very delicate situation. And so after the fact, once
(20:13):
you do the intake, all the attorneys are talking about it.
We figure out or you figure out what's going to
be your your best case or do you have kind
of a hierarchy of cases that you want to move
on to next? Or if one violation goes away or
one potential case goes away, you have one that's on
deck to be pushed forward. Is it kind of a
situation like that or is it just these are our
(20:35):
prime cases and we want to focus just on these
and have to kind of refer the other ones out?
S4 (20:41):
Well, as a combination of that, Justin, it's it's you know,
we obviously keep up on the laws and there's new
opinions being issued every day by the courts, by the
Supreme Court, by the courts of appeals. And we're constantly
monitoring what's going on in the wage and our field.
And so depending on, you know, what's going on, we
(21:04):
we may identify a new set of cases that we
want to pursue that we think is interesting, that we're
seeing a lot of maybe if we see some trends
starting to come in the door, we start to focus
on those a little more. But there's also, you know,
your your what I'll call the tried and true wage.
And our cases, you know, you're off the clock work,
(21:25):
your regular rate calculations. And there's just so many different
kinds that are always going to be in play and
a problem in the workplace. And so, you know, the
best way I can answer that is, you know, we
see all kinds of different cases. We don't particularly focus
on any one type of case. There might be some
(21:47):
trends here and there, but if somebody notices they're not
being paid correctly, they should reach out for sure and
just have their case evaluated. And we're pretty good at
spotting cases.
S3 (21:58):
Yeah. Imagine you have, for lack of a better term,
you know, these kind of slam dunks where it's just
a clear cut violation. There's no ifs, ands or buts
about it. You're not going to go to a jury.
It's going to just be, you know, an easy not easy. Obviously,
they're never easy, but it's just a clear, more clear
violation that allows for a more clear either litigation or settlement.
(22:20):
Do you have anything that comes to mind of just
more like, I like the over-the-top egregious case? Do you
have anything that is just such a clear cut violation
that you almost kind of laughed from it? Anything like
that come to mind?
S5 (22:32):
Oh, sure.
S4 (22:33):
Sure. We just filed one this morning. And so the
one we filed this morning, it's called a regular rate violation.
And essentially what happened in that case and we have
a number of these kinds of cases, but the employer
is supposed to take a shift premium or a shift
differential and calculate that into the overtime rate. And this
(22:56):
is all you can just look at the pay stubs
themselves and figure out if this is a case or not.
And many times the employer gets it wrong and simply
does not make the right calculation and and the employee
is not getting the proper amount of overtime paid to them.
That's the one we just filed this morning. Um, you know,
we see those cases a lot. The other one that
you kind of mentioned that I kind of laugh when
(23:18):
I see it and that's this case. That's where somebody's
working more than 40 hours in a week. Let's say
they work 50 hours in a week and the employer
is just paying them their regular base hourly rate for
the full 50 hours. They're not even trying to pay
him time and a half for their overtime. And again,
you see that right on the pay stubs. Yeah. And so,
(23:39):
you know, when you say, you know, you see one
that kind of makes you chuckle. Yeah. I mean, that's
that's the classic case. And we've had a number of
those cases, to believe it or not. There's employers, sometimes
big employers that just totally screw it up. So, yeah,
they're out there.
S3 (23:54):
I guess this kind of I have a well, as
we're talking about filing a lawsuit and how it works,
my thought immediately as a lawyer would be you're going
to have a lot of employers who will try and
bring into a lawsuit, maybe their their own company or
a secondary company that does their their payroll. A lot
(24:17):
of companies do not do payroll in-house. Most companies don't
would say. And they have a payroll company that helps
out with this. So the first thing I would think
is if anyone came to me, any of my employees
came to me and complained about hourly wages, I would
fix it right away. That's just I like you know,
as an attorney, we're very adverse to lawsuits against ourselves.
(24:39):
So we always want to fix things and make things right.
And I just want to do that as a person
as well. But imagine that a business in general would say, well, no,
my payroll company screwed that up, and I don't think
that that's my fault. Is that a pretty common thing
when we are starting to see lawsuits being filed?
S4 (24:56):
I wouldn't say it's extremely common. I think I've I've
run into that argument before. But, you know, typically, in
my experience anyway, the payroll company is typically just paying
the employees the way the employer is telling them to
pay them. And usually they're relying on the employer's information
and records to pay the employee. So, you know, I've
(25:20):
heard that argument in the past. Usually it doesn't hold up. Yeah.
When we actually examine it. And so, yeah, I'm not
sure that that's a great defense for an employer. It
does come up from time to time. Sure. Yeah.
S3 (25:34):
So when we're we're filing a lawsuit, say we get
past this initial consultation, you meet with the intake specialist
and now we decide, you know what, Summer Schwartz says
you have a good case. If you want to take
it further, we're happy to start with it. And myself
as the plaintiff, I say, okay, let's do it. What
happens next?
S4 (25:52):
Sure. Yeah. So once we identify a case as something
we want to take on, what typically happens is our
paralegals will get involved at that point. And we have
you know, every law firm in America has retainer agreements.
So we have our own, of course. And so we
send that out to the client. Um, the client will
(26:15):
take a look at that, ask any questions they have.
And once we have that retainer agreement signed, that gives
us the green light to go to work, right? We're
now officially hired. We can start drafting the complaint. We
can start really digging into the case and get the
lawsuit ready to file. Um, you know, as part of
(26:35):
that whole process, we've got to figure out what claims
are we actually bringing? You know, do we have the
fair labor standards that claim? Do we have any state
law claims that are similar that need to be brought
and that, you know, that all depends on where the
employee worked typically. And, you know, so we'll evaluate that.
And then we also need to evaluate at the same time,
you know, where are we filing what makes sense or
(26:57):
where do we have to file? Right? And that's usually
the state or the federal court where the employee actually worked.
S3 (27:04):
It's so interesting to in this this is something I
wanted to bring up about what you do there. A
lot of people don't know or just fail to recognize
that there is a vast amount of federal law. And
then you have to also have your state law. And
compliance in both is a rather tricky thing. And so
(27:25):
if you have a situation like this where you can
file in federal court or state court or both, even,
you have to be very well versed in so many
different things that come up. And I my practice estate planning,
I'd just deal with state court. I don't do any federal,
which is, you know, feel very blessed for that. But
(27:45):
at the same time, having a a federal standard and
in most of the states you said kind of mirror
the federal legislation. But there's got to be nuances here
and there. So what would be the advantage? Just, you know,
a quick off the top of your head, if you could,
for filing in state versus federal is one easier to navigate?
Is one a little bit more expeditious and quicker, or
(28:09):
are they both kind of the same?
S4 (28:11):
Well, it's it depends what state you're in. Yeah. Think
the biggest driver of of the answer to that question
is going to be the state statute that you're looking at.
I mean, some state statutes provide greater protections than the
Fair Labor Standards Act. For example, California is the notorious
employee friendly state. Right. And so, you know, when you
(28:33):
file a complaint in California, you're always, you know, looking
at the state claims in California, because there's so many
of them versus just the one federal claim. And so.
There's other states that are similar to that. You know,
I think we filed quite a few in Nevada and
Illinois and some other states that are, you know, the
state statutes are just more protective than the federal statute.
(28:56):
And so, you know, that's probably the biggest driver of
of the answer to that question, I think.
S3 (29:01):
Okay. Yeah. So more state specific. And that's a typical
lawyer answer for everyone listening to. It depends.
S4 (29:08):
Well, let me let me add to that, too. If
we're in a state because some state statutes, like, for example,
in Michigan, the overtime statute. Almost as identical, if not identical,
to the Fair Labor Standards Act. So when you bring
a a claim for overtime in Michigan, you you really
can't bring the state statute because it's preempted by the
(29:29):
federal statute. Yeah, that makes sense. Yeah. So in Michigan,
if you're filing an overtime claim, unless there's some strange circumstance,
you're going to be filing in federal court.
S3 (29:38):
Yeah, that makes sense. Yeah, the it depends thing. I'm
sure if you had a dollar for every time you
said that, you probably be a multimillionaire. That's a such
a lawyer like answer. But we have to say that
to as I mentioned, we have to be very careful
about what we say because context matters with our response
for everything that we say.
S4 (29:59):
And it really does depend mean it is absolutely true.
It depends on a lot of things.
S3 (30:04):
It's not a dismissal. Just that's that's the main thing
to know is that we are not dismissing or trying
to avoid what you're saying, but it actually does depend.
So yeah. So anyways, back to kind of what we're
talking about. And just to recap, we're talking about a
day in the life of a plaintiff of a lawsuit
(30:24):
being brought against your employer. And I'm joined by Jesse
Young of Summer Schwartz, and we're going to give out
all the information of how to reach out to some
Schwartz in just a little bit as well, too, because
I'm sure there's a lot of people who are thinking,
all right, I'm with you so far. We're we've got
to the the point where I noticed that I don't
have some of my wages on my paycheck. I'm ready
(30:47):
to hire a law firm. I've talked to the Summer
Schwartz intake specialist and ready to file a suit When
we get to a point now where we're looking at
this and we're saying, okay, should I just be going
on my own or should I be filing as a
class like a class action? And I you know, I
remember going over class actions in pro back in law
(31:07):
school and it gives me a little bit of PTSD
talking about this. So let's let's go easy if we could.
But it's I'm sure this is a very common question
and it's something you have to evaluate which could change
the whole dynamic of of the way the case goes.
S4 (31:22):
Oh, for sure. So we always we always look at
whether the case should be an individual case or a
class or collective action. And, you know, the difference between
a class action and a collective action is a real thing,
and that's probably its own podcast. So I'm not going
to bore everybody with that explanation, but it's there similar things.
(31:43):
But so sometimes we have potential clients who say, Look,
this is only happening to me. I'm not aware that
this is happening to anybody else. This is, you know,
my situation and I want to go forward as an individual.
And and that's fine. And that's how we will tackle
the case. Other times we'll have potential clients come to
(32:05):
us and say, hey, this is happening to me. I'm
not getting paid correctly for whatever reason. And by the way,
this is also happening to 20 of my best friends
at work. And so think it's happening to everybody. And
so in that situation, it might make more sense to
bring the case as a collective action or a class
action on behalf of the whole group of people that
(32:28):
are being affected. Yeah. And the way these cases work
is you can just have one plaintiff file the case
and move forward as a representative action. And that one
plaintiff would then represent all of the workers who are
similarly situated at the company. In other words, if they're
all being paid the same way or being paid incorrectly
(32:49):
in the same way, then that case can proceed as
a class or collective action. So we're always evaluating that
as well. You know, not only what claims or what court,
but how is this case going to proceed? Is it
going to be an individual case or a class action?
S3 (33:04):
So I think that just as an example of what
it might be like, if I come to you and
I say, Jessie, listen, I look at my my paycheck
and you say, Justin, do you think anyone else is
having a situation like this where they're not being paid?
Would you send me back to some of the other
employees to ask or would you say, you know, let's
(33:26):
let's reach out to them? I know that, ethically speaking,
where we have some limitations of what we're allowed to do,
but if we're trying to investigate whether it's a class
or a single situation, what would be the next step there?
Because I would find that pretty interesting. As the plaintiff,
do you send me back out to us and start
gathering names and information and asking people or are you,
(33:48):
you know, kind of facilitating these questions on your own?
S5 (33:52):
Right.
S4 (33:53):
So that's a that's a great question. So typically. When
a potential client says, Hey, this is happening to me
in 20 of my best friends or whatever, um, they will,
you know, offer up other people that want to speak
with us. And so, you know, we'll speak with them too,
and collect their documents. And, you know, if it's appropriate,
(34:15):
we'll have them join the case at the outset. Yeah. Um,
you know, other times somebody will come to us and say,
you know, I don't know that this is happening to
anybody else, but it's happening to me, and I think
it's probably happening to everybody else at the company just
the way, you know, from what I've seen in my
experiences and working there. Now we have as if if
(34:37):
we're going to bring the case as a class action
on that basis. And we think this is a company
wide practice and it's a company wide problem. As class
counsel for the case, we actually have a duty to
investigate whether this makes sense as a class action. So
we might in certain circumstances ask the client, Hey, can
(34:59):
you talk to one of your coworkers and have them
speak with us just about, you know, what their experience is,
that as a company, we just want to ask them questions,
investigate what's actually going on. If their experience is similar
and that gives us the confidence to say, Yeah, this
should be a class action and you know, we can
go ahead and take our one plaintiff and file the
(35:20):
case as a representative action and we'll have the confidence
to know that we think this is actually happening to everybody. Yeah.
S5 (35:27):
So.
S3 (35:28):
Yeah, yeah. So I was going to say that that
brings into a completely different situation where you have the
duty to inform people and let them know that there
could have been violations that they don't even know about.
So you're able to reach out to them. And I
remember I've gotten these, um, class action placards that say,
you know, you were part of this group that, you know,
you could be owed X amount of dollars for this violation. Um,
(35:52):
and that, that makes a lot of sense too, because
it's kind of, as an officer of the court, I
guess the court's duty here is to and especially that
legislation is to we want to make sure that we
are are compensating people who have been aggrieved through the
Fair Labor Standards Act. And and so it would be
in the best interest of the court of the legislation
(36:15):
of the, you know, of the state or federal government
to make sure that everyone knows that they they could
be qualified for something like this, too. Oh, absolutely. Yeah,
that that's interesting.
S4 (36:27):
Yeah. And so so one of the things one of
the first things that we do with our client in
a in a wage in our collective action or a
class action is we will file a motion with the
court and we will ask the court, hey, we think
we need to send a notice to everybody who works
at the company or who has worked in the company
for the past three years. You can go back three
(36:48):
years under the statute. And, you know, Judge, we think
we ought to be able to send out this notice
to all the employees, let them know that this case
is pending, give them a chance to join the case
if they want to. And as part of that motion,
the representative plaintiff, the original person who came to us,
(37:09):
will need to work with us to to create a
declaration or an affidavit that we can submit to the court.
And that affidavit basically tells the judge, Hey, I'm Jane Doe.
I've worked at the company for X number of years.
This is what I've seen. This is what's happening to me.
Think it's happening to other people based on what I've seen.
(37:31):
And that affidavit gets filed with a motion in support
of the motion and where we ask the judge to
send out the notice. Yeah. So that declaration takes a
little bit of effort from the client to help us
draft that declaration. And we've got to make sure it's
it's very accurate factually. And it's not it's not based
(37:52):
on speculation. Right. This has got to be something that's
personal knowledge to our client, right?
S3 (37:57):
Yeah. That makes a lot of sense to and it's
in the best interest of the individual and all others
who have been aggrieved to bring forward a class action.
I at least imagine I'm maybe this is more of
a question when you have people who are claiming that
an employer has done something wrong, that should, in my mind,
hold a lot more weight than just one person who's
(38:18):
making a claim against an employer. Is that correct?
S4 (38:21):
That's absolutely correct. So, you know, always say there's power numbers, right?
Everybody's heard that term. And when you show up at
the courthouse with 20 people and they're all claiming that
they're not paid correctly for the same reasons or very
similar reasons, that's that holds a lot more power than
just one person showing up and saying they want to
start a class action. Yeah, not to say that that's
(38:42):
not powerful, but when you have 20 people saying the
same thing, yeah, in my experience, the employer's got to
take that much more seriously. Yeah. Than they otherwise would.
S3 (38:52):
When there's, when there's smoke, there's fire. And obviously it
doesn't mean that someone is guilty, but it's. When you
have someone, a lot of different people making the exact
same claim, well, that's something you probably want to investigate
and get into it. And once you get into this
process now say we we are certified as a class
or even as an individual. And what's the next step
(39:13):
once that say, actually, let's let's go back to Jane Doe.
And she's filing this motion with her affidavit, speaking about
what she's seen in her workplace and what the employer
might be doing, What happens next? Say we get certified
as a class. Do we get we get on calendar
and then go straight to some kind of mediation or
(39:35):
are we going to try and work things out? Or
is this like the collection process of all paperwork? How
does it work from there?
S4 (39:41):
Sure. So if that motion gets granted and the judge
allows us to send out the notice to everybody, usually
there's a 30 or 60 or maybe even 90 day
period for employees at the company to join the case.
S5 (39:55):
Okay.
S4 (39:55):
And so all they have to do is submit this
one page form and they join the case. And at
the deadline, you'll know how many people are in your case.
And so once you know how many people are going
to be in the case moving forward, then that makes
sense to go ahead and create a case schedule for
the case. And so what happens is the court will
set a scheduling conference. The client may or may not
(40:17):
need to attend that with us. Usually not, but sometimes.
And you know, we'll work with the other side, with
the attorneys for the company and create some kind of
a discovery schedule for the case to proceed with discovery.
S3 (40:32):
And so this is the part where you see on
TV and movies where you have boxes and boxes of
documents being brought in, and that's where you and your
staff at Summer Schwartz are going to start looking through
all the paperwork and trying to find the violations, get
a good, clear cut understanding of all the evidence, and
really present your case based on that. Is that correct?
S4 (40:54):
Yeah, that's correct. And so this is really where the
plaintiff or our client has to do the most work
in the case. And the discovery process. And so the
way this typically works is you'll have a couple forms
of discovery. You'll have what we call written discovery, and
then we'll have depositions and. Talking about the written discovery
(41:16):
for a moment. So the written discovery basically is the
parties chance to ask each other questions and request documents
and other information through written papers. And so there's a
couple of things. One is the interrogators and what an
interrogator is, if you don't know, is written questions sent
(41:36):
to the other side that they have to answer under oath.
And so what happens is the employer will send 2025
interrogatories to our client and our client is going to
have to work with our paralegals to go through those
questions and answer them to the best of their ability.
And at the end, once we have all the answers
how we like them and, you know, truthful and thorough,
(42:00):
the client will then need to sign off on those
interrogatories and swear that they're true and to the best
of their knowledge, accurate. Yeah. And we also get a
chance to do that with defendant, right? So we get
to send a similar document to the employer with our
questions and they have to the same thing for us.
So that's one piece of the written discovery and that's
(42:24):
that's usually somewhat time intensive for the client, but it's
not bad. Our paralegals are very good at making that
a very efficient process, making it as easy as possible
for our clients to get through that. It's really not
too bad. And the second big part of the written
discovery is the request for documents. And so of course
(42:45):
we get to send requests for documents to the employer
requesting pay stubs, time records, policies, those kinds of things.
And then the employer will likewise get to send a
request for documents to our clients. And, you know, again,
our clients will work with our paralegals to pull together
any documents that they have, which, you know, usually in
(43:07):
my experience is not nearly a complete set of documents,
at least compared to what the employer has. But we
have an obligation to produce those. So the our client
will be, you know, asked and expected to go through,
you know, all the places where they could have these
documents and at least look for them and then produce
anything that they have to our office. And then we'll
(43:28):
go ahead and send those over to the employer.
S3 (43:31):
I strive to be organized, but I'm not the most organized.
Like what this what you're explaining there, I imagine you
need someone who is extremely organized and can kind of
catalog everything in a very nice, neat and orderly way. Um,
and I'm very lucky at my firm that I have
staff that help me with that as well too, and
(43:53):
also my wife. But it's such an important thing to
get all these things because this tells the story. This
is the this is where in my mind where everything
comes from, where the basis of the litigation comes from.
And it really tells the story of the case. And
where you come in after that is to explain here
(44:15):
is all the evidence of the violations. And this is
why we're going to win. And so you need to
have that kind of organization to make sure that it
does explain exactly what the employer did. But I imagine
it's just so much paperwork a lot of the times
that it just kind of makes your head spin.
S4 (44:35):
It certainly can be depending on the size of the
employer and the size of the the class. You know,
some of these cases can be very, very complicated and
very document intensive. And so, you know, thankfully at our firm,
we're blessed to have a great staff. We've got numerous paralegals,
(44:56):
legal assistance, intake specialists, associate attorneys, partners. We have a
whole team of people that, you know, take care to
go through all these documents and make sure we understand
what's going on in the case, make sure nothing gets missed. Um,
you know, also to help our clients, you know, sometimes
we have clients that have lots of documents. And so,
(45:19):
you know, our staff is very helpful in helping our
own clients, you know, sort through their own documents so
we can produce what's relevant and and responsive and discovery
and so. You know, you really do need a good
team of people to go through this process, including the
interrogative and the request to produce. And I think we
(45:41):
have that.
S3 (45:43):
So at this point, Jesse, once we get to the
written discovery, we do the interrogatories. We answer all these questions.
We move on to the next step, which is depositions.
Is that right?
S5 (45:57):
Right.
S4 (45:57):
So once the parties have all the written discovery in place,
then we can move on to depositions. So just very quickly,
depositions are. It's an event in the case where you
sit down and actually get to ask the other side
questions in person. And that person or the witness is
under oath while you get to ask these questions.
S5 (46:19):
And so.
S4 (46:20):
You know, from from our perspective, we typically like to
take depositions of the company employees, including, you know, we
might get a company representative to come in and speak
as to the policy and practices at the company. We
might get some supervisors in, ask them questions about the
actual day to day activities, you know, on the floor
(46:42):
or in the office or whatever the case might be.
And sometimes we'll even bring in the HR people or
the payroll staff and ask them questions about how they
do payroll in the company. And, you know, these are
very important pieces of the case because this is your
chance to actually ask the employer under oath certain questions
(47:03):
about the case. And, you know, you're making a record
of that testimony under oath so that, you know, if
you go to trial in the case, you know what
the other side's going to say at trial. And if
they deviate at trial, you'll have this other record you
can kind of point back to and and ask them
why their answers are different or whatnot. Yeah.
S3 (47:23):
So you have it's kind of like a three part
thing for trial or at least two parts where you
can say, all right, I have these interrogatories and you
can use those in the deposition to say, Well, why
did you answer this way? And let them kind of
expound on that. And then you get into trial where
you can have a very similar situation, where you have
maybe someone who's contradicting themselves on an interrogatory or the deposition.
S4 (47:47):
Right. All right. And the documents, you know, we'll put
documents in front of them in the depositions. Have them
answer questions about the documents. And it has the same
effect at trial. You know, their answers are going to
are going to be relevant when it goes to trial. Yeah.
And so, you know, our clients are very we rely
on our clients a lot for those depositions. So, you know,
(48:07):
our clients are going to be in touch with us
to talk about, you know, maybe some of the questions
we should be asking about the company and how it operates.
And maybe the supervisor was your direct supervisor. And we're
going to want to know everything we can know about
that supervisor from our own client. So our clients are
going to be involved to some extent in the deposition process,
and we're going to have to talk with them and
(48:29):
get as much information as we can. Yeah. And you know,
on the flip side of that, and my partner, Jason Thompson,
we'll talk about this in the next part of this podcast.
Our own client has to sit for a deposition, right?
And so, you know, there's a whole preparation for that
and a whole process for that. And in my opinion,
(48:51):
the plaintiff's deposition is probably the most important event in
the entire case. So I'll let Jason go into that.
I won't steal his thunder, but, you know, Jason will.
We'll be on with you, I think, in the next
week or two to talk to you about that. And
I'll let him explain that and how that works. But,
you know, a very important part of the discovery process
(49:13):
for sure.
S3 (49:14):
Yeah. And we're not even what would you say this
is at this point? This is maybe halfway through the
process or not even halfway through, because so many different
things can happen that it could really swing the case
one way or another, especially if we go to trial.
S4 (49:28):
Sure. Yeah. Yeah. The depositions, you know, are usually a
turning point in the case. You know, that really opens
up everybody's eyes as to what the testimony is going
to be for trial. Right. So, you know, at that point,
you have a chance to resolve the case one way
or another. Um, but again, I think Jason's going to
speak with you about that stuff and I'll let him
(49:48):
do that.
S3 (49:49):
There's there's so much information that, you know, being only
halfway through, I'm really excited to hear the second part
of this and go over the second part of this.
On how how how it is to be a plaintiff
in a lawsuit against your employer and day in the
life of the whole process. And when Jason Thompson is
coming up on the next episode in a couple of weeks.
(50:10):
So we're going to be talking about not just positions,
but also mediation and and how the case can ultimately
play out and hopefully avoid trial, because that would be
ideal for most people. But sometimes it ends up going
to trial. And we need all of this front end
work to be done in order to ensure that you
(50:31):
have the best chance possible at trial. So this is
it's been a great, great and very informative show. Thank you, Jesse.
I really appreciate joining us for to talk about all
this information.
S4 (50:44):
My pleasure. It's very nice to speak with you today.
I'm looking forward to coming back again sometime. Thanks a lot. Yeah.
S3 (50:50):
I can't wait. Once again, my name is Justin Isaac
and this is Overdue Over time. Presented by Sommers Schwartz,
This has been a day in the life of a
plaintiff Part one, and we are going to be speaking
in a couple of weeks about a day in the
life of a plaintiff Part two and how the rest
of this case might actually come about. If you do
(51:10):
have a claim, if you think you have a claim,
you should definitely go check out Sommers Schwartz at Sommers
PC .com for more information or to speak with one
of those intake specialists that we were talking about. And
hopefully if you do have a claim, you can talk
to Jesse and figure out how to best be compensated
(51:35):
and take it from there. So thank you again for
everyone who listened. Again, this is our second podcast of
Overdue Overtime. My name is Justin Isaac and we'll see
you in a couple of weeks.
S6 (51:52):
If you have comments, questions and show ideas, visit Sommers
PC dot Com. Overdue Overtime is produced at the IVC Media
Lab in San Diego, California. Your host is Justin Isaac,
and Jessica Garcia serves as general manager, while Elia Ramos
is the creative director. Lina Alvarez assists with production and
Chad Peace is president and founding partner. Over time. This
(52:17):
has been a presentation of Sommers Schwartz on the oldest
media network.
S2 (52:22):
Olsd media.
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