Enforcement Options To Collect Unpaid Overtime
The Secretary of Labor is authorized and directed to administer the provisions of the FLSA. (29 U.S.C. §§ 204 and 211) The Wage and Hour Division of the Employment Standards Administration within the Department of Labor issues rules, regulations and interpretations under the Act and conducts compliance reviews. (FLSA regulations and interpretive guidelines may generally be found at 29 C.F.R. Part 500-899) All employees protected by the FLSA also have a private right of action to recover minimum wages and overtime compensation. (29 U.S.C. § 216(b))
Civil Action by Secretary of Labor.
Violations of the overtime provisions may be enforced in a civil action filed in the name of the Secretary of Labor under Section 16(c) of the FLSA. The Secretary of labor may institute suit in any court of competent jurisdiction to recover back wages and an equal amount as liquidated damages on behalf of aggrieved employees. (29 U.S.C. § 216(c)). Sums recovered in any action filed by the Secretary are held in a special deposit account and paid directly to affected employees on order of the Secretary. (29 U.S.C. § 216(c)).
Private Litigation by Aggrieved Employees
An aggrieved employee may file a lawsuit for unpaid overtime pay and an equal amount as liquidated damages, plus attorney's fees and court costs. (29 U.S.C. § 216(b)). In addition, an employee may sue an employer who discharges or otherwise discriminates against him or her for asserting rights to which he or she is entitled under the Act. (29 U.S.C. §§ 215(a)(3), 216(b)).
The vast majority of courts agree that union members may bring an FLSA suit without resorting first to the grievance-arbitration provisions contained in their collective bargaining agreements, since an employee's right to pursue overtime claims in court is deemed independent of any contractual rights to arbitrate wage claims.(Bratten v. SSI Servs., Inc., 185 F.3d 625 (6th Cir. 1999)).
Section 16(b) permits one or more employees to maintain an action, on behalf of themselves and others similarly situated, to recover damages on any of the bases available for individual relief. (29 U.S.C. § 216(b); 29 C.F.R. § 790.20). Section 16(b) collective actions are not, however, traditional class actions. Under section 16(b), an employee does not become a party plaintiff in a collective action unless he or she first gives a written consent to become such a party, and that consent is filed with the court. (29 U.S.C. § 216(b); 29 C.F.R. § 790.20). Generally, a class member must 'opt in' to be bound. For statute of limitations purposes, consents to become a party to the lawsuit must be filed before the limitations period has run; consents filed after the filing of the original complaint do not relate back to the date the complaint was filed. (29 C.F.R. § 790.20).