How to Report Unpaid Wages and Recover Back Pay
The Department of Labor's Wage and Hour Division (WHD) is responsible for enforcing the Fair Labor Standards Act (FLSA). The most common remedy for wage violations is an order that an employer make up the difference between what the employee was paid and the amount he or she should have been paid. The difference is referred to as "back pay." Back wages may be ordered in cases under the FLSA.
The process of enforcement is described below, along with the different methods which the FLSA employs for recovering unpaid wages and overtime pay. For more information, see FindLaw's Wage and Hour Laws section.
Complaints and Investigations
The WHD conducts investigations as a part of its enforcement of the FLSA and many investigations are initiated by worker complaints.
All complaints are confidential. Your name and the nature of your complaint aren't disclosed. The only exception is when it's necessary to reveal your identity, with your permission, to pursue an allegation.
The type of information needed to file a complaint includes:
- Your name
- Your address and phone number
- The name of the company where you work or worked
- The location of the company
- The names of managers or owners
- The type of work you did
- How and when you were paid
Additional information, such as copies of pay stubs, personal records of hours worked, or other information regarding the employer's pay practices, is helpful. The services WHD provides are free and confidential, whether or not you are documented. Importantly, your employer can't terminate you or otherwise discriminate against you in any way for filing a complaint with WHD.
Along with complaints, WHD selects certain types of businesses or industries for investigations. Sometimes, a number of businesses in a specific industry or region will be examined. An investigation consists of several steps:
- A conference between the WHD representative and representatives of the business, during which the investigation process is explained.
- Examination of records to determine what laws or exemptions apply to the business and its employees. These records can include those showing annual dollar volume of the business, the manufacture, handling or selling of goods moved in interstate commerce.
- Examination of time and payroll records, note taking or making transcriptions or photocopies of information essential to the investigation.
- Private interviews with certain employees, the purpose of which is to verify the time and payroll records, to identify a worker's duties in sufficient detail to determine what exemptions, if any, apply and to determine if young workers are legally employed. Interviews are normally conducted on the employer's premises, but other arrangements may be made. In some situations, present and former employees may be interviewed at their homes, by phone or by a mail interview form.
- When the fact-finding steps have been completed, the employer will be told whether violations have occurred and, if so, what the violations are and how to correct them. If back wages are owed, the employer will be asked to pay back wages and the employer may be asked to compute the amounts due.
Recovery of Back Wages
The following are the methods which the FLSA provides for recovering unpaid minimum wages and overtime wages:
- WHD may supervise payment of back wages.
- The Secretary of Labor may bring suit for back wages and an equal amount as liquidated damages.
- An employee may file a private suit against an employer for back pay and an equal amount as liquidated damages, plus attorney's fees and court costs.
- The Secretary of Labor may obtain an injunction to restrain any person from violating the FLSA, including the unlawful withholding of proper minimum wage and overtime pay.
Any employer who discharges or otherwise discriminates against any employee because the employee has filed a complaint may be liable for such appropriate relief as employment, reinstatement, or promotion. An employee can't bring a private suit if he or she has been paid back wages under the supervision of WHD or if the Secretary of Labor has already filed suit to recover the wages. Additionally, a 2-year statute of limitations applies to the recovery of back pay. However, in the case of a willful violation, a 3-year statute of limitations applies.
Employers who willfully violate the minimum wage or overtime laws are subject to civil penalties of up to $1,000 for each willful violation. Willful violations of the FLSA may result in criminal prosecution and the violator can be subject to a fine of up to $10,000. A second conviction may result in imprisonment.
If you believe you may be owed back wages collected by WHD, you may search the WHD's database of workers, and if you find that you are owed money, you can submit a claim. If you need help in understanding your rights, or legal assistance in filing a private suit for back pay, you can contact an employment attorney.