If you are a worker reading this blog, it may be because you are considering (or already pursuing) a legal action.

Often, a worker pursues a legal action based only on his or own knowledge, and without additional proof, i.e. without evidence such as documents or witness statements.

This post focuses on the importance of witnesses — i.e. flies-on-the-wall who are independent from you, and who observed actions or statements that would support your legal claims.

Witnesses who observed facts that are important for you, and who are willing to step up to the plate and testify and/or sign a statement about those facts, could help a worker’s case a great deal.

Before beginning or continuing a legal case, here are some things a worker should consider about witnesses:

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Readers interested in H-1B worker issues may already know of many websites with information about H-1B employers and H-1B filings.  But in case you haven’t heard, below are some websites with H-1B-related information that may be of interest.

(Please note these websites are potential resources for information of interest, but this blog’s authors are not affiliated with the referenced websites, nor can we vouch for the validity of particular information they post).

• FLCDataCenter.com: This site includes fiscal year statistics, from 2001 to 2010, concerning Labor Condition Applications (LCAs) used by employers in support of petitions for H-1B visas.

• DOL’s Case-List Regarding LCA Issues: This site, of the U.S. Department of Labor (DOL), lists links to legal decisions relating to LCA and H-1B worker issues.

• Desicrunch.com: This site includes comments by H-1B workers about sponsor employers. These comments, which range from very good to very bad, should not be accepted as true at face value, as is the case with any message-board- type website.

There are many, many different factual and legal issues that arise in employment disputes.

However, there are a few fundamental, core issues that underlie nearly all employment disputes and lawsuits.

The biggest cause of employment lawsuits I see is poor communication– most commonly, a worker letting anger or knee-jerk reactions control the way he or she communicates and acts.

The fix to prevent this is what a parent told you: Count to Ten.  Before you react out in an angry or knee-jerk fashion, take time to calm down, assess the situation, and take heart of the full gravity of the situation and the possible outcomes if various actions are taken.

If you are in a calm and factual state of mind, you will often deal with a situation much better than if you had acted out of emotion.

In almost every circumstance, when an issue arises at work (whether severe or minor), the people involved are able to work through the issue, with no one needing to lose their job or otherwise be harmed, if everyone keeps their cool.  Heck, if one side keeps their cool, that’s usually enough to make the other side calm down.

But once issues become personalized by either side, and communication suffers, then the matter is at high risk of leading to injury (e.g. lost job or wages or litigation-related expense) and festering until a much later resolution.  Those who count to ten almost always wind up in a better position.

This post continues my series of tips, or things to consider, for workers with unpaid wages.

Tip #8 is this: Being Paid on Salary Basis Does Not (By Itself) Exclude You From Overtime Pay.

There is a common myth among workers that if a worker is paid on a salaried basis, then the worker is not entitled to overtime (1.5x regular pay for hours over 40 hours per week), end of story.

Please know that being paid a salary does NOT itself disqualify (“exempt”) a worker from overtime.  Paying a worker a salary is one criterion of multiple criteria that must be present for an employer to avoid overtime obligations to that worker. Thus, for any salaried worker, additional criteria must also be present before that salaried worker can be overtime-exempt under the law.

On this website, the Department of Labor describes common exemptions for overtime coverage under the federal wage law, the Fair Labor Standards Act.  The website describes the criteria (salary pay of at least $455/week PLUS other listed criteria) that must be met before an employer can legally exclude a worker from overtime pay under one of the detailed exemption types.

As you will see, the exemptions mostly depend on the job duties that the worker performs, and whether the nature of those duties (regardless of salary pay) are the type that make the worker overtime-exempt.

If you are a salaried worker who has reviewed these exemptions, you may not agree with your employer’s classification of your job as overtime-exempt.  Indeed, there are frequently lawsuits where workers and employers disagree about the employers’ application of exemptions that the workers feel are inappropriate for their jobs and duties as actually worked.

If a worker simply (and wrongly) assumes that salary pay excludes him or her from overtime pay, then the worker may be overlooking other necessary exemption criteria that are not fulfilled, and overlooking a potentially valid legal claim for unpaid overtime.

This post continues my series of tips, or things to consider, for workers with unpaid wages.

Tip #5 is this: Know there is strength in numbers– the larger the unpaid wage amount, the larger the employer, and/or the more employees who are underpaid, the more likely it is you have leverage for potential legal claims relating to unpaid wages.

Some workers with unpaid wages focus (understandably) on factors such as the obviousness or unfairness of the unpaid wages at issue.

Consider a worker who expresses something like this:

“My employer deducted $300 from my paycheck, and I read a government agency website that says deductions like this are unlawful!”

While such interpretations by a worker may well be true (or may not), the amount of wages at issue in this example ($300) is itself important to consider before taking action such as making a complaint, paying hourly (non-contingency) legal fees to an attorney, etc.

A wage amount that is less than thousands of dollars may well be important to recover– hey, being underpaid $10 you are owed is too much– but lower wages must be compared to (1) the potential time and resources invested in a legal action; and (2) the employer’s reaction.

For example, a complaint to a current employer about $300 in a situation like the example above could result in the worker being fired, as a practical matter.  Is that potential consequence worth the potential benefit of recovering $300?  I am not trying to answer this question, just mention that it bears asking.

Generally speaking, a potential action for unpaid wages has more potential leverage the higher the amount of wages at issue.

Also important is whether the employer is systematically underpaying large numbers of workers or not.

When an employer knows it may owe you and/or a number of other workers a large amount of wages, the employer knows it has more potential liability on the line if it refuses a request, or defends a legal action, for unpaid wages.

This post continues my series of tips, or things to consider, for workers with unpaid wages.

Tip #4 is this: Keep documentation if you think you may pursue payment of unpaid wages.

If there is a chance you may try to recover unpaid wages from an employer (now or in the future), it is very important you keep complete documentation of all that’s going on.

This means: (1) hold on to all paystubs; (2) hold on to any other documents (e.g. contract, bonus plan/policy, emailed complaints about wages, etc.) that relate to wages; and (3) create a journal of relevant issues.

For example, if the employer is deducting 1.0 hour of wages for a lunch hour that you had in fact worked through, and you made a spoken complaint to your boss who failed to act, record a journal of such facts each time they occur. Later, it can be of great help to you that you have documentation supporting events that relate to unpaid wages.

This tip of keeping documentation may sound obvious, but it is an easy thing to forget or overlook, especially as time passes.

Stay on top of things, and maintain (and organize) all documents relating to wages, if you’re considering an attempt to pursue the unpaid wages, either via a legal action or informal request, down the road.

This post continues my series of tips, or things to consider, for workers with unpaid wages.

Tip #3 is this: Before you complain (to your employer or to a legal authority) about unpaid wages, know your audience.

When a worker learns he or she was underpaid, it is common for such a worker to complain about the underpaid wages right away, as if by reflex.

The types of complaints take many forms.

An underpaid worker may walk up to his manager with a paystub showing underpayment, say “Hey, this isn’t right!” and wait for the manager’s reaction.

Or the worker may find a website for a State or Federal wage enforcement agency, download a legal wage complaint form, fill it out, and mail it to the agency, without talking with the employer or the agency beforehand about information and options.

The act of complaining is often a good thing.

However, before complaining (assuming you have time under legal deadlines), it is best to get educated about the complaint process(es) at issue.

Namely, a worker should learn about this: who is my audience that my potential complaint would be going to?  What is their usual process and timing for handling such complaints?  What is the usual result? Is this type of complaint my best option as compared to other potential options?

A worker can ask these questions, for example, in a pre-complaint phone call with the government wage agency at issue.

If you take time to educate yourself on the questions above, and get to know your audience better, you will almost certainly learn of important information — including potential options, risks and benefits– that you were not aware of before.