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. 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;
- 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;
- 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).;
- Utilize Excel spreadsheets to organize data or calculate wages due;
- Ensure decision-makers are present during the mediation;
- Consider your best, worst, or most likely alternatives to a negotiated agreement (BATNA, WATNA and MLATNA);
- 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.
 WHD by the Numbers 2021 | U.S. Department of Labor (dol.gov)
 Five Tips for an Effective Mediation Statement (americanbar.org)
 Instruction for Filing a Wage Claim (ca.gov)
 Instructions for Filing a Wage Claim (ca.gov)
 How To Calculate Hours Worked in Excel (Plus Tips) | Indeed.com
 BATNA, WATNA, MLATNA Probability in Mediation: Effect of the Variables (linkedin.com)