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The most prevalent wage issues include unpaid wages and owed overtime. Read more about how to recover unpaid wages and what resources and tools you have to utilize for your benefit.


UNPAID WAGES & OVERTIME:
Unless exempt, employees covered by the Federal Labor and Standards Act (FLSA) must receive pay for all hours worked in excess of 40 hours in a workweek at a rate of not less than one and one-half their regular rates of pay. This is referred to as “overtime” pay. An employer who requires or permits an employee to work overtime is generally required to pay the employee premium pay for such overtime work.

ARE YOU ENTITLED TO OVERTIME PAY?
The FLSA’s exemptions exclude employees that are in executive, administrative or professional categories. Exempt employees must make at least $684 per week or $35,568 annually and meet exemption criteria in order to not be eligible for overtime pay. 

A non-exempt is usually an employee who is eligible for overtime, and is one who receives hourly wages, is paid at least minimum wage, and holds a non-managerial position.

Read more about the new 2020 January Overtime updates: January New Overtime Rules & Potential Impact


NOT GETTING PAID FOR ALL HOURS WORKED:
You have the right to payment of all wages earned. As regards other forms of compensation including, unpaid commissions, incentives, bonuses, accrued vacation or sick leave, your right to payment of this compensation is dependent on the language of your employer’s policy as well as the employer’s past practice in similar situations.

What Should I Do?

  • Obtain a copy of the compensation plan documents
  • Request a meeting with your HR representative to review policy and plan documents, ask questions regarding the amount of compensation you are owed and how the company plans to pay this to you
  • If your efforts are unsuccessful, we recommend you speak to an employment attorney and consider filing a complaint with the Department of Labor’s Wage and Hour Division

FILING FOR UNPAID WAGES:
You may file a confidential complaint with the Department of Labor (DOL) regarding your unpaid wages. The Department of Labor’s Wage and Hour Division enforces the Fair Labor Standards Act (FLSA) on behalf of all employees.

Note that it is a direct violation of the FLSA for your employer to fire, discriminate or retaliate against an employee for filing a complaint. 

The Investigation Consists Of:

  • An examination of records will determine what laws or exemptions apply (i.e copies of pay stubs, personal records of hours, time and payroll records, notes, transcriptions and other information concerning your employer’s pay practices).
  • Private interviews will take place to confirm an employee’s duties and time/pay records.
  • When the investigation is complete, the DOL representative will present whether or not violations have occurred and how to correct them and also advise your employer to pay you for any back wages owed.
  • Note that a two (2) year statute of limitations applies to the recovery of back pay unless it is in the case of willful (intentional) violations, in which a three (3) year statute of limitations applies.

GETTING LAST PAYCHECKS:
The Department of Labor states that employers are not required by federal law to give former employees their final check immediately. If the regular payday for the last pay period has passed and you have not been paid, contact the Department of Labor’s Wage and Hour Division or your state’s labor department.

Contact Information for State Labor Offices

FLSA Methods in Recovering Back Wages:

  • The Wage and Hour Division may supervise payment
  • An employee may file a private suit for back pay 
  • The Secretary of Labor may bring suit for back wages which can be doubled in the event a “willful” (intentional) violation is determined to have occurred. You may also obtain an injunction to restrain any person from violating the FLSA

Uniforms/Equipment Deducted From Your Pay:

Under the FLSA, uniforms and other items that are used to benefit or convenience the employer, are considered wages. Uniforms are considered a business expense of an employer and are not required of employees by the FLSA. As stated by the Department of Labor, the employer may prorate deductions for the cost of the uniform over a pay period contingent on the deductions not reducing the employee’s wages below the state-mandated minimum wage.

Common Scenarios:

  1. A minimum wage employee working as a cashier is not required to reimburse the employer for a cash drawer shortage. 
  2. An employer is not allowed to enforce tipped employees to pay for customers who do not pay their tabs or for incorrectly totaled tabs.
  3. An employer is not allowed to make employees responsible for having an elaborate uniform cleaned.
  4. An employer may not reduce an employee’s wages below the minimum wage due to any kind of economic loss suffered by the employer, even if it is due to the employee’s negligence.

REPRESENTATION BY COUNSEL:
We recommend having a consultation with a qualified labor and employment lawyer before you make a decision to file a complaint with the Department of Labor, as a lawyer may recommend an approach to attempt to settle your claim prior to filing a complaint or help you file the complaint directly with the DOL or in State/ Federal Court. A qualified labor and employment lawyer can also explain to you in detail your statute of limitations deadline and any other important associated issues you should consider.


Additional Resources: