VLF Video Educational Series – How to Calculate Damages under the FLSA


Charles Vethan: Hello and welcome to the next installment of the VLF Video Educational Series. Today’s topic is calculating damages out of the Fair Labor Standards Act for the FLSA. My name is Charles Vethan.

Joseph Colvin: I’m Joseph Colvin.

Joseph Lanza: I’m Joseph Lanza.

Charles: So Joseph under calculating damages on the FLSA on our last series we’ve addressed what the work week was and a recordkeeping requirement. What are some damages that are available to an employee under the FLSA?

Joseph C.: Well, there are several categories. The obvious category is the amount of overtime they are actually owed for the services the rendered on a week by week basis. In addition to that, the court can award what’s called Liquidated Damages, which could be the amount equal to the actual damages, which basically doubles the dollar value attorney’s fee are coverable under FLSA, which can be significant. Finally, there’s a chance for plaintiff under certain conditions to extend the statute of limitation, which basically increases the time period for which they can recover.

Charles: So Joe Lanza, what are the requirements for a court to extend the statute of limitations from two years to three years?

Joseph L.: The statute of limitations is a time in which you can bring in your lawsuit. If you wait too long, the court or the statute of limitations bars you from filing a lawsuit. Generally in an FLSA case, the statue of limitations is two years.

Charles: Can that be extended beyond two years?

Joseph L.: Yes that can be extended to three years, if you can show that the employer had no good faith basis for compensating an employee the way they did in failing to pay overtime.

Charles: In determining what a good faith basis is, what are some arguments that an employee may make that an employer must be prepared to defend against to extend that statute of limitations from two years to three years?

Joseph C.: There have been a number of cases on top of them. Some of them include, the situation happened before, previous lawsuit, some of them included failure to consult legal counsel. Courts held that failing to consult in depth with an attorney about this specific job duty, for this class of employees. Failure to do that is enough to show that the violation was willful under the influence of extending the statute.

Charles: You mentioned consulting attorney, is that a reason that an employer has to say, “Look we didn’t act in bad faith, we acted in good faith,” because you spoke with our attorney.

Joseph C.: It can be as long as it’s not a mere rubberstamp. There’s cases that if you just call your attorney and say, “Hey, they are paying me without overtime, is that okay? They’ll say, “Yeah, it sounds fine.” That’s not going to work. There has to be a detailed analysis of the specific job duties of that particular employee.

Charles: That’s an interesting point Joe Lanza because if an employer relies on the advice of the lawyer to whether to determine if the employees have title it all the time or not. As we know, communications between a client and employer are protected by the attorney-client privilege. What is an employer to do in that position to show that, “Yes, we consulted an attorney? Yes, we had a basis for it?” Without the destroying the attorney client privilege.

Joseph L.: Well that circumstance with the employer relying upon consultation with an attorney to support the exemption, the employer is going have to make what’s called a limited waiver of the attorney client privilege, limited gesture that narrows specific issues or not to other communications between the attorney and the employer.

Charles: What are some documents that an employer should make sure that it has from his attorney in determining whether the employees are exempt or not? What are the key documents?

Joseph C.: Probably document number one is going to be an accurate job description, not a nearly job description. An accurate job description based on with those employees and their managers.

The second is going to be, probably what you would call an opinion letter, which is a letter from the attorney to the employer saying, “We’ve evaluated these particular set of facts against the FLSA and based on our analysis these employees are in fact exempted.”

Charles: As I understand it, the attorney has to read the job description to find out the parameters of the discussion will be and prepare us an opinion letter that says, “Based on the information that have been given it appears your employee is exempt or un-exempted.”

Joseph C.: Exactly.

Charles: Thank you for joining us today on our discussion regarding calculating damages under the Fair Labor Standards Act.

Joseph C.: Your problem is our business.

Charles: For more information about calculating damages please see our website at www.vethanlaw.com. We will see you next time.


I wanted to personally thank you and your staff again for doing such a great job. VLF has been simply amazing. Their professionalism, negotiating skills, and knowledge of the law have simply been a lifesaver for my business. The overall settlement was so much more than we ever expected and hoped for. Simply put, they saved my company. I cannot say enough about your firm and its staff. Thanks to you, my company will continue to grow and be profitable. Thank you, thank you, thank you!

Scott Stephens President, Custom Shop Guitars of Texas, LLC Vethan Law Firm, P.C. April 10, 2016

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