The number of suits filed under the federal Fair Labor Standards Act is rising.

As the recession drags on, more and more employers are facing lawsuits over the failure to pay overtime from employees they were forced to let go.

Many employees who wouldn’t have dreamed of suing their boss when they were working lose that loyalty when the pink slips are handed out and with so many people across the country and in South Florida out of work, the number of suits filed under the federal Fair Labor Standards Act is rising.

Patricia Thompson, labor attorney from Carlton Fields in Miami.

Thompson’s most basic advice is to pay people fairly.

“It is wrong in whatever business you’re in to ask somebody to work for you before they actually clock in,” she said. The key is to honestly assess when and how employees are working.

“Nowadays everybody has Blackberries. If they’re hourly workers but they’re on call and you are able to email them when they’re off the clock, aren’t you getting services from them?” she said.

And calling someone a manager will not keep you out of trouble.

“Another one of the myths is if you have a small business and you make an employee a manager, you don’t have to pay them overtime,” she said. “Just giving someone a title, if they’re really performing the same work as everyone else in the organization, doesn’t exempt that person from the overtime rules.”

Savings vs. lawsuits

Anthony Georges-Pierre, of Remer & Georges-Pierre, one of the top labor law firms in South Florida in terms of the number of lawsuits it has filed, said many employers think they’re saving money, but if they face a lawsuit over their cost-cutting, it may be much more costly than if they had paid their employees fairly in the first place.

“There are companies out there that don’t play by the rules and figure they’ll never get caught but you can make money without violating the rules,” he said. “If your employees find their way to our door and after doing our investigation, we determine you’ve violated the rules, it will cost you dearly.”

Not following the labor laws is “theft, just without a gun,” he added.

Many employers ask laid-off workers to sign a release, promising not to sue, before giving them severance packages. That, however, may not prevent a lawsuit.

“A settlement of wage claims under the FLSA, whether as part of a severance and release agreement or otherwise, is not valid unless it’s been approved by a court or the Department of Labor,” Thompson said.

Both Georges and Thompson said there are unethical plaintiffs’ attorneys out there who will file suit, even if an employer has complied with the law, in an effort to extort money.

“We do a careful investigation before we’ll file a suit because we understand that a lawsuit is going to disrupt a company’s operations, especially if it’s frivolous,” Georges-Pierre said. “We don’t file frivolous suits, but sure, it does happen.”

Thompson said businesses should find out if other similar companies have been sued recently, which can often indicate an industry is being targeted by plaintiffs’ attorneys. She’s even seen instances of the same person suing different businesses under FLSA.

There’s very little businesses can do once they’re forced to let employees go. The work to avoid a lawsuit needs to be done while the employees are still working for the company.

“If you’re in a business that doesn’t pay people by the hour or you’re worried whether you are paying properly it would be wise to talk to an attorney about it,” she said. “There is a defense under FLSA for certain claims, though not all, if you’ve received advice of counsel.”

Susannah A. Nesmith. Miami