Why use a lawyer for a wage claim instead of the Department of Labor (DOL)?

The law provides for people who have minimum wage, overtime, or unpaid wage claims to be able to seek recourse with the Department of Labor (DOL) or with a lawyer, though the courts. Why use one over the other?  It’s a good question. Both do important work, but here are some factors of each to consider:

  1. The DOL doesn’t charge attorney fees; lawyers do. However, it doesn’t cost the employee money either way. The wage laws provide that attorney fees be paid by the employer in addition to any wages, liquidated damages, or penalties they may be required to pay to the employee. That means almost all attorneys who do this kind of work do so on a “contingency” meaning that they only get paid, by the employer, if there is actually a recovery. If there is no recovery, the lawyers don’t get paid either – which makes the financial incentives aligned with their clients (you!) Plus, if the contingency is a percentage, it is in the lawyer’s best interest to make sure your recovery is as high as it can be.
  2. The DOL is limited in the kinds of claims it can pursue. A state DOL can only pursue state wage claims; a federal one can only pursue federal ones. In some jurisdictions the difference may not matter but in others the difference can be quite substantial. In addition, if you have claims outside of the pure wage claims that the DOL is specifically authorized to pursue, you wouldn’t be able to pursue those.
  3. The DOL does not accept all cases. The exact criteria vary depending on which DOL you are dealing with. For example, in Colorado the CDLE only handles wage claims up to $7500. Both Colorado’s state DOL (the CDLE) and New York state’s DOL (NYSDOL) will not accept unpaid wage claims of independent contractors. Of course, lawyers do not accept all potential cases either, but there is more variety of the kinds of cases they will pursue.
  4. How much money you get. The DOL’s main goal is to protect “the public good.” Attorneys’ goals are to pursue their specific clients’ rights. The emphasis is different, and it results in different outcomes. For example, pursuant to the Wage Theft Transparency Act The Colorado CDLE publishes its list of violators and dollar amounts here.  A quick scan of them shows they are mostly a few hundred dollars, up to a few thousand – few if any even get to the $7500 cap.
  5. How long a claim will take can vary immensely from DOL to DOL, from law firm to law firm, and from state to state. Unfortunately. none of them are instantaneous, but there are some that are much worse than others. Sometimes you may be able to work with a lawyer and achieve a settlement in a shorter time frame than you might get if you went through either the DOL or court.
  6. Size of claim. Some law firms will not accept claims that they consider to be “too small.” If you are only owed a few hundred or even a couple thousand dollars and have contacted a few lawyers who were not willing to take your case, you might be able to get the assistance you need with the DOL.
  7. Whether you get a settlement agreement or court judgment with a private lawyer or a favorable finding from the DOL, if the employer does not willingly pay up, enforcement is still necessary.
  8. The choice of who you work with. In some ways this is like having a public defender versus having a private attorney of your choosing. There are some great public defenders in the world, just like there are some amazing DOL agents. There are some not so great ones. Same with lawyers. The difference is, in the private setting you get to choose which law firm and/or lawyer you want to work with. In the DOL setting, you get whom you get.

The various Departments of Labor do good work and provide resources we should all be grateful for. Sometimes they will be exactly what somebody needs for their claim. However, it is generally worth your while to at least explore whether a wage lawyer would be willing to pursue your claim for you. If they are, then more often than not it is likely to be in your best interest to go that route.

 

Written by Penn Dodson