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Since the 1992 filing of Vizcaino v. Microsoft Corp., which settled for nearly $100 million, litigation concerning overtime pay has taken a high profile in employment-related CCL. These suits normally allege that the employer forced workers to skip meals and breaks and perform their job responsibilities off the clock. The employees claim to have received no compensation for the off-the-clock work and seek 150 percent of their wage rate plus attorneys’ fees and other relief for the uncompensated time under the Fair Labor Standards Act or state law.

Plaintiffs have had mixed success in pursuing overtime cases on a class action basis. In June 2005, for example, a North Carolina appellate court affirmed denial of certification in Harrison v. Wal-Mart Stores, Inc., 613 S.E.2d 32 (N.C. Ct. App. 2005). Some plaintiffs file FLSA “collective” actions, which require affirmative steps to join a case. Most class actions seeking monetary relief, by contrast, require affirmative steps ─ such as sending in an “opt-out” notice ─ to avoid being included in a case.

Overtime lawsuits raise an important knowledge question: whether the employer knew that specific employees worked beyond 40 hours without time-and-a-half pay. See Newton v. City of Henderson, 47 F.3d 746, 748-49 (5^th Cir. 1995) (rendering judgment against employee who failed to report overtime). Juries will soon start deciding cases that present a fact issue as to the employer’s knowledge.