Question: A few of our current and former employees received letters from a law firm suggesting they might be able to file a class action lawsuit against us because of allegations that we didn’t properly track work hours or comply with rest and meal period requirements. Can they do that? How should we respond?
Answer: Yes, it’s generally legal for attorneys to solicit clients this way, and the first thing you should do is contact your Vigilant Law Group employment attorney (if you’re a Vigilant member) or other legal counsel. These letters aren’t new, but they’ve become increasingly common, particularly in Washington. The letters are normally framed as educational in nature, explaining that employees must be paid for any work they do, even if it’s outside of normal working hours. The letters also typically provide basic information about rest and meal period compliance in states like California, Oregon, and Washington, which have specific requirements in those areas. While you can’t stop the letters, here are some proactive steps you can take:
- Reviewing recipients and surrounding circumstances: Start by thinking about who is receiving these letters and for what reason. It’s possible that one of the recipients is disgruntled and shared coworkers’ contact information with the firm. If you think one or more people are contacting the firm, review their employment histories and follow up on any items that could create risk. For example, if this is a current employee and they previously complained about not getting a meal break, make sure it was handled properly and that your compliance is solid now.
- Mitigating risks around uncompensated time: Review all your nonexempt (overtime-eligible) positions. Do any of these roles have access to work systems, such as email or servers, outside of regular work hours, e.g., on their mobile phones? Are any of these individuals being contacted by supervisors or coworkers outside of regular work hours and asked to do work? Do you have issues with these people showing up early or staying late and not being paid? If you identify risks in any of these areas, work with your Vigilant Law Group employment attorney on fixes, which will often involve working with the supervisors to improve processes or at a minimum ensure people are being paid for this time.
- Mitigating risks around rest and meal periods: If employees work in states with specific rest and meal period requirements (such as California, Oregon, or Washington), review all your nonexempt roles and identify your actual rest and meal period practices for them. What are the jobs in which you suspect employees may not be taking rest or meal periods in compliance with the requirements? Do you have records to prove your rest and meal period compliance if you’re challenged? Like uncompensated time, if you identify risks in these areas, connect with your Vigilant Law Group employment attorney and work with supervisors to address those risks.
Wage and hour compliance, particularly around rest and meal periods, continues to be one of the most difficult things for employers to get right, while also being one of the biggest areas of legal liability. You can’t account for every risk, but you can improve, and we recommend using these letters as motivation to invest in your compliance. Vigilant members, see our Legal Guides on breaks and meal periods for California, Idaho, Montana, Oregon, Washington, and Washington Agricultural Employees, and connect with your Vigilant Law Group employment attorney for specific guidance.
Wage and hour compliance is tough, but you don’t have to navigate it alone. If you’re not a member yet, reach out today to learn how Vigilant membership provides employers with ongoing counsel and support, helping you stay compliant with confidence.
