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Interview with Attorney Alan Crone on Overtime

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Memphis, TNAttorney Alan Crone is senior partner of the Memphis-based Crone & Mason PL. This is a law firm that prizes teamwork to tackle complex relationship cases, whether they surface in business to business, family and/or employment law. In this interview, Crone helps navigate the intricacies of overtime law.

Crone has no trouble finding clients who believe they are not being compensated justly for overtime worked. They come to him in pinstripes, hospital whites and workman's coveralls, from across the country and from all walks of life and economic backgrounds. But it's not a numbers game with him. Rather, it's about giving some measure of empowerment.

LAS: How do potential clients hear about your services?
AC: We get a lot of calls from people who have seen our website and sites like yours. We also receive lots of referrals from employment lawyers we are familiar with, and lawyers we have relationships with. And, if our former clients were in a class action or a collective action and have a friend or relative with similar problems, they refer us.

LAS: Would you say there is a growing trend in overtime complaints?
AC: I don't know if it's growing or not but a year or two ago the Department of Labor estimated that one third of the American workforce was not properly compensated under the Fair Labor Standards Act. So there is a lot going on out there and this has always been an area where there is a lot of noncompliance.

LAS: And from an employer standpoint?
AC: There are companies that err on the side of the employee, making sure they pay their people the correct wage. And there are those that, when they hit gray areas, will err on the side of themselves--they will do whatever is economically feasible and see if there are ramifications.

LAS: Is there erring towards one side more than the other?
AC: I think there's a real lot of pressure from an operational standpoint to cut costs and one way is to designate people who work long hours as exempt from overtime. If a company guesses wrong on that or is willfully blind to what the real answer is, it can have serious repercussions. But I really couldn't say, for example, that 80 percent of employers make the wrong decision, but there are enough of them who make the wrong decision or don't pay enough attention to it that I don't have any problem finding cases.

LAS: What would you say is the percentage of 'success' rate in overtime cases?
AC: I would say it was very high. If an employee has been misclassified or paid to work off the clock or otherwise has an NFL violation--unlike a Title 7 case or any other kind of employment case where interpretation of a lot of different factors comes into play--this can be a fairly simple thing. Usually an employer will look at the facts and circumstances, make a determination about what their success rate might be in a particular case, then try to resolve the case, with that percentage in mind.

LAS: Where would complications arise?
AC: It all largely depends on how the company and the plaintiff's lawyers each pursue the case. Those that may take a little longer to resolve may be where the company really believes it is right and felt it did the right thing; it analyzed the position and maybe just came up with a different analysis than the court or the plaintiff's lawyer would.

I think it depends on the sophistication rate of the client in terms of how many times they've been down this road and do they fully understand it--the sophistication level of counsel. Have they worked on similar cases, do they understand the risks and where the economics of settlement are.

I think once both sides look at it from a business standpoint and recognize what the relative strengths and weaknesses of the case are, and are then willing to translate that into their settlement position, then those eventually settle.

LAS: Can you give us an example of strength and weakness in a case?
AC: In terms of strength--it might be from one side or the other--if you had a number of cases that had decided like this in the past, where a number of courts of appeals had already ruled on this and the facts are well known to support one position or another, that is the area where it becomes easy to talk about.

A weakness might be where the outcome is really dependant on testimony that hasn't yet been obtained. For example, it may be important what the supervisor says, what his or her practice was in supervising this particular employee and what duties they had. There may be circumstances where everyone agrees what the employees did but they disagree how a court interprets that and there hasn't been a lot cases like that.

LAS: Have you come across any irresolvable cases?
AC: Statistics show that in terms of civil cases, only two percent or less actually make it to trial. It would be unusual not to have a good faith effort made to try and resolve via a settlement and I think these cases lend themselves to that because it comes down to a pure legal question rather than a factual question. And to circle back to your previous question, the cases where there is no clear legal or factual questions, those are the ones that are the hardest to resolve.

LAS: Can you give us an example?
AC: A lot comes down to the ability of the parties to compromise. The question might be, in an administrative exemption case, whether the particular employee or group of employees had sufficient independent judgment to qualify for exemption. The employer looks at the set of facts and says, 'Of course they had sufficient independent judgment', and the plaintiff looks at the same set of facts and says, It's clear they don't have that independent judgment'. That's when a judge or jury has to make that determination for them because they can't compromise.

That's based on the federal Fair Labor Standards Act.

LAS: What advise would you give a potential claimant?
AC: Find an attorney who does this kind of work and let them analyze it and give an opinion because this isn't the type of thing where, like in some areas of the law, you can apply common sense or conventional wisdom and see if you have a case or not.

In this area, there is a set of regulations an inch or so thick, and statutes that have been interpreted by a number of courts, so each individual circumstances is different.

[On a personal side] I wouldn't just assume the company is correct and that you're wasting your time. You owe it to yourself to investigate. And once you determine you're not being paid correctly, you should give serious thought about making a claim and fighting the company on it. And not be intimidated by the company out of getting what is rightfully yours.

So often people think they're going to be fired or retaliated against in some way. Those things may happen but if they do, the law has a remedy for you. Often those fears are reasonable and realistic, but they are unfounded. The companies aren't going to do that because, for one thing, the company knows that if they retaliate it will be worse than the underlying problem.

I know that it sounds trite to say 'stand for yourself', but if you don't stand up for what you deserve and what you've been promised, then who will? My clients, generally, at the end of the day feel good about themselves, even when the advice is that they are being paid correctly, and often times I've had to tell people 'I know what they're doing doesn't look fair but it's legal'. Even those people feel better because they feel like they've looked into it, and now they know.

Conversely, when you make a claim and someone pays you what they owe you, that gives working people a chance to some empowerment. You know, that's one of the things I enjoy doing--helping people to stand up for themselves and get what they deserve.

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