What is a Private Right of Action?

 In Employment Law, Wage Law

What is a Private Right of Action?

A “private right of action” is a legal term meaning that an individual rather than a governmental agency has the right to bring a lawsuit to prosecute and punish violation of rights conferred by a statute. Having a private right of action is important to workers. It means that an employee can sue his or her employer directly for wage and hour violations. For example, if your employer has stolen part of your tips or has failed to pay the minimum wage or has underpaid your overtime, you can directly file a lawsuit in state court to vindicate your rights as an employee.

If an employee has no private right of action, then violations of labor laws are prosecuted and punished by a governmental agency, like a city or state Department of Labor.

Why Does Having a Private Right of Action Matter?

First, beginning the process of vindicating your rights is faster. If your employer has violated your rights as an employee, you and your lawyer can file a lawsuit immediately. The only delay is the time it takes to investigate the employer’s misbehavior and to draft the necessary paperwork. If only the Department of Labor can bring an enforcement action, then months will go by before the first step is taken.

Second, having a private right of action means that EMPLOYEES have control over vindicating their rights. Fairly frequently, governmental agencies will not file an enforcement action at all. Sometimes this is just sheer overwork. The agency personnel do not have time to investigate every employer violation and there may not be enough staff. But aside from being understaffed, personnel at local and state labor departments may have pro-employer political and ideological leanings. This is another factor that leads to lax enforcement of labor law violations. This is not a problem when employees have a private right of action.

Third, having a private right of action means that workers will get their money more quickly. Since an employee does not have to wait for the labor department to take action, a lawsuit can be filed quickly, which means that settlement negotiations can begin sooner. Further, if a lawsuit must be filed, then that can be litigated quickly, leading to a quicker verdict for the employees.

Finally, having a private right of action often means a higher settlement or verdict. Typically, with a privately filed lawsuit, the employee has the power to demand the highest possible payment from the employer.

A note of caution is in order since, where a private right of action is granted by statute, many such statutes require exhaustion of administrative remedies. Chicago, for example, enacted a predictive scheduling ordinance in 2019. The ordinance will be enforced by the Chicago Department of Business Affairs and Consumer Protection (“DBACP”). The ordinance allows employees to sue their employer directly to vindicate the rights conferred by the ordinance, but only after the employees first file a complaint with the DBACP, and allow the DBACP to investigate and make a determination. Once the DBACP issues its determination, then a private lawsuit can be filed. Despite the requirement that complaints must first be filed with the DBACP, the Chicago ordinance is still protective of workers. A private right of action is a powerful tool for workers and it is feared by employers.

Call the Employee Rights Attorneys at Herrmann Law Today

For more information, call the Employee Rights attorneys at Herrmann Law. If you think that your employer has violated your rights as an employee or engaged in wage theft, call us. We are proven, experienced, employee-focused attorneys representing workers across the United States in all types of workplace disputes. Use our Online Contact page or call us at (817) 479-9229.

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