A few years ago, I received a nice note around vacation time from my opposing counsel in an hourly wage class action lawsuit, thanking me and my firm for being their “partners” in resolving employment issues. .

Maybe the word he used wasn’t “partners”, but it was something close.

At first I have to admit I thought he was joking.

Then I realized that this lawyer, for whom I have a lot of respect, understood that.

He understood that employers weren’t out to break labor laws, and the lawyers who represented them weren’t trying to help their clients break the laws.

He understood that the opposite was true – employers try to comply with laws and their lawyers try to help them do so. No employer hopes to be prosecuted. Not one. And the lawyers who advise employers on how to break the laws will soon be looking for new clients. Or a malpractice attorney.

The general public may not understand this notion and, unfortunately, many plaintiffs’ employees and attorneys either.

The desire of employers and their lawyers to comply with the law manifests itself thousands of times every day, to the great benefit not only of employers, but of employees.

Every employment lawyer worth their salt has stories of how they’ve worked with their clients to prevent a manager from terminating an employee’s employment, reducing an employee’s salary, or implement a problematic policy, explaining the law and the potential repercussions. Some attorneys have hundreds of such stories.

“You should give the employee another chance,” is a phrase that might as well be on a recording, as it is often used. “Document the problem, sit down with the employee to explain how they need to do things differently, and give them another chance.” “If you make this change, you’re stepping straight into a class action lawsuit that you’ll have a hard time defending.”

Often – usually – employers will understand and follow their lawyer’s advice once they are out of the thick of the action.

They seek to do the right thing, to treat their employees fairly. And, yes, to comply with the law.

It’s an approach that works in virtually every setting except perhaps one – the Fair Labor Standards Act (FLSA).

The FLSA actually works to dissuade employers from working with employees to fix many wage issues.

Why is that?

Because unlike other employment laws, the FLSA generally does not allow employers and employees to resolve wage disputes unless it is a labor dispute or complaint. agency neither employers nor employees really want.

The FLSA in general forbidden very amicable resolutions that would benefit both employers and employees.

And maybe it’s time to change that.

In a perfect workplace, if employees have any problems, they will speak up with their superiors or with human resources and resolve their differences amicably.

And, for the most part, the law not only allows them to do so, but encourages them to do so.

If employees believe they have been harassed, they can raise their concerns with their employer and let the employer investigate and take corrective action, if necessary.

If employees believe they have been discriminated against, they can raise their concerns with their employer and resolve their differences.

And if part of the resolution is a payment of an amount that the employer and employee agree to be fair, they can enter into a settlement agreement whereby those claims are resolved. In other words, the employee can accept an agreed sum of money and sign a release. And the employee can review the settlement agreement with their lawyer beforehand to decide if the terms are fair. Otherwise, the employee will not sign it.

But those same employees who are able to informally resolve virtually any dispute with their employers are generally not allowed to do so with FLSA claims.

If employees believe they haven’t been paid for all the time they’ve worked, they can’t just speak with their managers or HR staff to address the issue, resolve it, and move on. . No, generally speaking the only way to resolve the issue is to complain or file a complaint with the Department of Labor (DOL).

If employees believe their overtime pay was miscalculated, the only way for them and their employers to resolve the claim is to sue or go to the DOL.

If employees think they’ve been mistakenly classified as exempt, they can’t resolve the issue with their manager or Human Resources staff. No, they must sue or file a DOL complaint.

And if employers identify a problem – an error on someone’s paycheck or concern that an employee may have been misclassified – the best they can do is correct the problem and pay the employee. , then sit back and hope the employee doesn’t. turn around and sue about the very issue the employer wanted to fix, but couldn’t.

It is a system that is built to increase litigation, often unnecessarily, to the detriment of out-of-court resolutions of issues that may arise.

There’s no good reason to trust employees to resolve other employment disputes without litigation or agency complaints, but they can’t be trusted to do so when it comes to wage claims.


There is no good reason why employees can be allowed to amicably resolve a race or gender discrimination issue, for example, but the same employees cannot be allowed to resolve a wage claim – not even in part of the race or gender resolution. discriminatory concern.


The argument that an employee doesn’t understand the nuances of the RSA goes as far as a turkey. The FLSA is no more nuanced than Title VII or the Americans with Disabilities Act, and employees are permitted to resolve such claims outside of litigation or a complaint to an agency.

And remember, employees can always ask an attorney to review an FLSA settlement proposal before committing to it. If it wasn’t fair, the lawyer would surely tell the employee and try to negotiate better terms, right?

Ultimately, it is the decision of the employees. If they don’t like the terms of a proposed resolution of FLSA complaints, they can always file a DOL complaint or grievance. then.

If you assume that employers and employees would like the opportunity to try to resolve their FLSA disputes before litigation or a DOL claim, it’s time to amend the FLSA to give them the right to do so.

And the blueprint for what the legislation might look like is easy to find – it’s in the Age Discrimination in Employment Act (ADEA). Or, more specifically, it’s just in the Older Workers’ Benefits Protection Act (OWBPA) amendments to ADEA.

For reasons that remain somewhat mysterious, releases from age discrimination claims under ADEA require specific conditions that releases from other types of federal discrimination claims do not. Among other things, these waivers must specifically reference ADEA, they must inform employees that they have the right to consult an attorney, they must allow the employee 21 days to consider the waiver (or 45 days in some circumstances), and must allow employees 7 days to revoke an agreement after signing.

There’s no reason the FLSA can’t be amended to allow private settlements along the same lines – with a requirement that the version refer specifically to the FLSA, that it notify employees that they have the right to consult with an attorney (or the DOL), that they have 21 days to consider release, and that they can revoke the release within 7 days.

You don’t like the settlement proposed by your employer? Don’t sign it.

You do not understand ? Talk to a lawyer or the DOL.

Need time to think about it? You have plenty of time.

Do you have doubts after signing the agreement? Revoke it.

If these bells and whistles are enough to protect older workers who want to resolve age discrimination complaints, they should be enough to protect all employees who want to resolve FLSA complaints.

Employees would benefit from a system that would encourage employers to resolve pay issues – and, not coincidentally, that they might not have to split 30-40% of their settlement with lawyers.

Employers would benefit from a system that would help them solve these problems while avoiding litigation – saving on paying attorneys’ fees to lawyers like me.

The courts and the DOL would not be cluttered with claims that cry out for resolution.

The only people who would not benefit from this proposed amendment would be lawyers.

And if you’re worried about us lawyers, you should call a doctor.

This document has been provided for informational purposes only and is not intended and should not be construed as constituting legal advice. Please consult your attorneys regarding any factual situations under federal law and applicable state or local laws that may impose additional obligations on you and your business. © 2020 Epstein Becker & Green, PC