Our Boston wage dispute attorneys know that there are many ways that a person can lose a civil lawsuit against a former boss.
One of those is not presenting enough evidence. Another is having a witness or witnesses who aren’t credible. Yet another is waiting too long to take legal action.
However, one of the most preventable ways is failure to file the proper paperwork, particularly after the judge has ordered it. The best way to ensure this does not happen is to hire an experienced lawyer to prepare your case.
In Perry v. Zinn Petroleum Companies LLC, failing to do this was precisely the downfall of his case. After the judge dismissed the case, the plaintiff was ultimately successful in having the case re-opened upon appeal. But it’s an unnecessary setback that should never happen – and a reminder that these cases are best handled by an experienced law firm.
According to court records, the plaintiff, “Perry,” filed suit against his former employer, a petroleum company, back in September 2011. At the time, he had worked for the company for about two years. Perry alleged in his suit that the defendant willfully denied him overtime payment, in direct violation of 29 U.S.C. 207(a)(1). This is the federal law that defines a full work week as 40 hours; it also holds that overtime a non-salaried worker puts in must be compensated at a rate that is at least one and one-half times his or her regular rate of pay.
Perry claims that, in addition to this, he had injured his back while at work in the fall of 2009. Following that incident, he was not able to work for several months. When he was able to come back, the company told him there was no position available. The plaintiff held that this violated the state’s workers’ compensation law.
After the initial complaint was filed, the company filed a response. Then, the district court gave Perry 20 days to file something called a “statement of claim.” This would specifically outline the exact amount of the overtime wages he claimed weren’t paid and provide detail about the nature of those payments. He was told at the time that his failure to do this could result in the whole or partial dismissal of his complaint. And yet, Perry failed to properly file.
So in mid-January of 2012, the court gave him an extension. In that order, it was stated that failure to comply by the stated deadline would result in a dismissal of the case without prejudice, meaning he could file another case if he wanted. The plaintiff still did not file the paperwork, and neither did he or his attorney request another extension.
The plaintiff’s attorney later told the court he had drafted the statement of claim, but then forgot to file it. He also stated there was a misunderstanding, as he thought the case had been referred to another judge who would adopt a new schedule for filings.
The court denied the plaintiff’s motion for reconsideration and dismissed the entire claim.
The only reason the appellate court reversed in this case was due to the statue of limitations on wage claims, a dismissal without prejudice ultimately was akin to a dismissal with prejudice – because he would have been barred from filing again. So it was only due to a technicality that he ended up getting a second chance to present his case.
When you’re filing a claim like this, you’ve already been let down by your employer. You don’t want your attorney to let you down as well. Hire someone with proven skill and experience.
The Brown Law Firm, LLC, has offices in Belmont and Boston. For a free and confidential consultation, call 617-489-0817 or contact us online.
Perry v. Zinn Petroleum Companies LLC, Nov. 8, 2012, U.S. Court of Appeals for the Eleventh Circuit
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