Lawyers work overtime on wage-and-hour suits.

The number of lawsuits alleging violation of overtime laws has risen sharply in recent years, as plaintiff attorneys have begun to achieve impressive victories for overworked and underpaid employees.

Between 1998 and 2000, the number of suits under the Fair Labor Standards Act (FLSA) increased by almost 25 percent, from 1,562 to 1,935, according to the Administrative Office of the U.S. Courts. Enacted in 1938, the statute requires that employees be paid 1 1/2 times their regular rate for every hour over 40 they work in a week. However, employees who qualify as "administrative," "executive," or "professional" are exempt.

The principal issue in many overtime suits is whether an employer has misclassified employees as exempt. Employees' duties--not their title or job description-determine their status, and plaintiffs often argue that their duties do not correspond with their job titles. Typically, they seek back pay to compensate them for the overtime they should have been paid.

Gregory McGillivary, cochair of the American Bar Association's Labor Standards Committee, advises attorneys pursuing such cases to check state wage laws. Many "provide for class actions and contain fewer exemptions and stronger damage penalties than the FLSA," he said. "Cases pursued under both the FLSA and state wage laws are an attractive option."

Plaintiffs have won wage-and-hour suits in federal and state courts, as juries and judges have refused to let employers avoid paying overtime by merely giving employees more advanced job titles. For example, in July 2001, a California jury awarded substantial damages in Bell v. Farmers Insurance Exchange, a class action brought by 2,400 insurance claims adjusters who alleged that they were improperly denied overtime pay. The jury rejected the defendant's argument that the adjusters are administrators and therefore exempt from receiving overtime pay. (No. 774013 (Cal., Alameda County Super. Ct. Apr. 5, 2001).)

In August, a federal judge awarded overtime pay, plus interest, to 125 Waffle House restaurant managers who regularly worked as cooks, filled in for servers, and worked almost twice as many hours as they were told to expect. (Cowan v. Treetop Enters., Inc., 163 F. Supp. 2d 930 (M.D. Tenn. 2001).)

Also in July, managers at Starbucks Coffee Co. challenged their exempt status, claiming they do many jobs that are not managerial, including making coffee and cleaning cappuccino machines.

Other large companies that have been sued for overtime violations include Wal-Mart, Pepsi-Cola, General Dynamics, and Bridgestone/Firestone. Suits brought against Rite Aid, U-Haul, and Taco Bell have been settled.

McGillivary believes this trend will continue. "Employers simply cannot resist pushing the envelope when it comes to compliance with the FLSA," he said.