When is a win not a win?
One ace in the hand of plaintiffs’ counsel in Fair Labor Standards Act (FLSA) litigation (as well as claims under Title VII, the Americans with Disabilities Act or the Age Discrimination in Employment Act) is their ability to recover attorney fees should they prevail. While that is, indeed, a strong card, it can be overplayed, as a recent case demonstrates.
In Vasconcelo v. Miami Auto Max, Inc., Case No. 19-10679 (11th Cir. Nov. 25, 2020), the plaintiff brought an FLSA claim based on alleged problems with the employer’s commission draw system that he contended deprived him of the minimum wage in some weeks. The employer made a Rule 68 offer of judgment for $3,500 plus reasonable attorney fees, an offer the plaintiff rejected. Continue Reading