Wage and hour claims are made every day. In 2021 the Department of Labor (DOL) reported that over $230 million dollars in back wages were owed to employees nationwide.[1]  According to a recent report from law firm Seyfarth Shaw, the top 10 wage and hour class actions in 2019 totaled $449.05 million. These cases were filed in California, Utah, Arizona, New Jersey and Missouri.

Whether an organization is facing a potential wage claim or a worker has just filed a claim, mediation can be the best course of action in resolving the matter.

When it comes to mediating a wage and hour claim, what is the best way to prepare to ensure a higher likelihood of reaching a resolution that is favorable to both parties?

  • Prepare a mediation brief[2];
  • Bring relevant documentation to support or defend claims such as employee handbooks, waiver forms, work schedules, time records and paystubs pertaining to the relevant time periods[3];
  • Know how to calculate compensation due such as minimum and/or overtime wages, meal and rest wages, liquidated damages, waiting time penalties, other statutory penalties, e.g., dishonored checks (bounced check).[4];
  • Utilize Excel spreadsheets to organize data or calculate wages due[5];
  • Ensure decision-makers are present during the mediation;
  • Consider your best, worst, or most likely alternatives to a negotiated agreement (BATNA, WATNA and MLATNA)[6];
  • Prepare your client by discussing what to expect in mediation – How long the mediation may take, the process of negotiating;
  • Do a cost-benefit analysis by asking important questions – How effective will your evidence be in the future? What impact will this case have on everyone involved? How will litigation or a judgment impact each party? What is the financial cost of going to trial?
  • Know how long your case will potentially take to get to trial;
  • Prepare a memorandum of understanding or proposed settlement agreement – consider allocations for tax purposes of potential settlement funds;
  • Consider many options on how to resolve the matter. Be open to creative solutions;
  • Get plenty of rest the night before; and
  • Be prepared to negotiate with a positive attitude.