If you are about to file a wrongful termination case against your employer, based on discrimination or retaliation or both, you should make sure you include any claim for unpaid wages or overtime, and any other claims for technical labor code violations, if possible. These may include such violation as failure to provide meal breaks and rest breaks, failure to reimburse for business expenses, unlawful deductions from paychecks, failure to issue accurate wage statements, failure to produce personnel file upon request within the time period provided by law, etc… Even if the amount of unpaid wages is very small, it can provide you with a significant strategic advantage later, during litigation. Here is why:
Let’s say your lawsuit against the employer includes the typical claims of (1) discrimination (2) retaliation (3) harassment and (4) wrongful termination. You also add claims for unpaid wages and overtime, even though the underlying amount that’s potentially owed to you by the employer is very small. At some point in litigation, your employer will likely have to make the following assessment – should they spend the money and file a motion to dismiss your case? This will depend on the nature of your case, how they feel about it and also on what their chances of dismissing your case are. If you have viable claims for unpaid wages, however small that claim might be, the employer will know that they cannot dismiss that part of the case, and therefore, even if other claims are dismissed, they will still not get rid of your case. This means they are still facing the risk of going to trial, losing and also having to pay attorneys fees to their own attorneys and your attorney, since a prevailing Plaintiff in a wage case is entitled to reasonable attorneys fees.
Thus, including the wage claim will provide a two-fold strategic advantage to you: (a) it will encourage the employer to try to settle the case, because they will know that their chances of dismissing the entire case are very low or none; and (2) it will save your case from dismissal if the employer decides to move forward with the motion to dismiss.