As an employer, who is facing a labor commissioner claim for unpaid wages, overtime, and other possible violations, which was brought by your present or former employee, the practical consideration of fighting a claim are just as important as the legal merits of the claim against you. When making the decision as to whether to have a hearing on your claim v settling the claim early and avoiding the risk of losing the claim, you need to ask yourself the following four key questions: 

1. How likely are you to win v lose? An experienced employment attorney should be able to advise you on your chances of prevailing v losing and what's the most you can lose, so that  you know what your risks are. Even though no attorney can know for sure the outcome of a claim, knowing your chances and assessing your exposure risks will help you make the decision about continue to fight v settling. 
 
2. If you win, will this really be a victory for you? How much will it cost you to take the claim all the way through a hearing even if you end up winning. Will you spend more on an attorney than you can settle your claim for today? If so, maybe it's worth considering putting the principle aside for the sake of making the right financial decision and making the claim go away earlier than later. 

3. How much of an (emotional) distraction is this? Do you get angry, anxious or stressed out from this process? Does it interfere with your ability to run your business efficiently by taking your time and mind away from what's really important to you now? Is this something you can put to rest relatively inexpensively? If you answer "yes" to these questions, it might be worth settling your claim sooner than later, especially if the amount doesn't justify losing sleep over it.   

4. Do you need to send a strong message to other employees? Is it important for you to fight this case to send a message to other employees that you don't settle claims easily in order to discourage them from filing (similar) claims? If so, you might have to continue fighting and even consider filing an appeal if you end up losing at the labor commissioner hearing. If you are not ready for this, this is yet another reason to settle sooner than later.   

This week, we settled on small wage claim for unpaid overtime on behalf of our client, a former IT administrator. Even though his total claim was for over $80,000.00, he elected to not wait for the hearing and accept an earlier smaller settlement with the employer. This claim was supported by evidence in a form of payroll records, and support tickets on which our client worked. 

At first, the employer did not want to pay anything arguing that our client was not entitled to overtime because he was exempt under administrative or professional exemption. However, we managed to show that the majority of our client's duties were not those of a manager. He was providing typical support to the company's network systems. He was not building or designing, but only maintaining and configuring the network - a critical difference in claims of unpaid wages and overtime.   

It is harder to prevail in a case where the claimant's word goes against the word of the employer and a large number of the employer's witnesses, who come to support the employer in part out of fear of retaliation if they refuse to support the company's side or especially if they decide to support the claimant. However, in this case, our client has his own former manager ready to testify about his non-exempt duties and his work hours, which was very helpful in settlement discussions. 

Today, I had the pleasure of representing a former, long-time employee of a company, who was claiming a substantial amount in unpaid vacation. He had solid evidence to support his case. The attorney who was representing the employer appeared like he really did not know what he was doing, most likely because he did not know much about employment law.   

However, because the rules of the labor commissioner hearings are so much more relaxed, the opposing attorney was allowed to ask completely inappropriate and inflammatory questions, which would have never been allowed to be asked in court. On several occasions, he and the employer's witnesses called my clients a thief and a liar. The attorney's line of questioning included such questions as: "Isn't it true that your claim is completely frivolous?", "Isn't it true that you fabricated your claim and you have been sitting and lying the entire time?", and "Isn't it true that you are just trying to take advantage of a company that has already been struggling?"   Unfortunately, those question go to my client who broke out in tears as soon as the case was over. He felt offended and humiliated by the allegations, even though I assured that he should have been laughing at those ridiculous questions. I suppose it is easier said than done.   

I suppose the lesson for the claimants is to be ready to be badgered and not let it get to you. Keep you eye on the ball and focus on the legal and business aspect of the claim, and don't let false accusations, offensive questions, and badgering upset you or make you mad.