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Can I Sue My Employer for Not Paying Me?

How to Report Unpaid Wages and Recover Back Pay

Federal law says all employees need to be paid for the time they work. They also must be paid the correct amount without being shortchanged. A violation of these laws is called "wage theft."

The U.S. Department of Labor's Wage and Hour Division (WHD) is responsible for enforcing the Fair Labor Standards Act (FLSA). However, individual state labor laws also apply. Cities and states are continually advancing the rules in place to help workers.

For more information, see FindLaw's Wage and Hour Laws section.

Can You Sue a Company for Underpaying You?

Yes, you can sue for being underpaid. First, you need to submit a claim through WHD (more on this below) and wait for WHD to investigate the claim. They will decide if the claim is valid and submit a legal order for your employer to pay what you are owed.

This is a common remedy for wage violations. Your employer should make up the difference between what you were paid and the amount you should have been paid.

The difference is referred to as "back pay." Back wages may be ordered in cases under the FLSA.

If this first attempt at getting your money does not work, you can consider suing your employer in small claims court or your local court.

Labor laws and wage laws can be tricky, and your ability to sue or recover missing wages can depend on:

  • Are you an exempt employee or paid an hourly wage?
  • Do you make the federal minimum wage or state minimum wage?
  • Are you an independent contractor (I.C.)?
  • Do you work a non-traditional workweek?
  • Is there a class-action lawsuit against the company (if other employees also want backpay or are missing wages)?
  • Was the money missing from your last paycheck pay period, or could it be on the next paycheck?
  • Did you work overtime hours?

These are all key considerations if you consider small claims court, and are things a wage claim employment lawyer will want to discuss.

Can You Sue When an Employer Doesn't Pay You?

You can always sue when an employer doesn't pay you (see steps above). However, an employee cannot bring a private lawsuit if:

  • They are paid back wages under the supervision of WHD
  • The Secretary of Labor has already filed suit to recover the wages
  • The two-year statute of limitations (time limit on bringing a lawsuit) has passed. However, in the case of a willful violation, a three-year statute of limitations applies.

Remember: An employer cannot fire or discriminate against an employee for filing a complaint. Firing, failing to promote, or otherwise taking action against an employee is considered retaliation and is illegal.

You Can Submit Complaints That Start Investigations

The WHD conducts investigations as a part of its enforcement of the FLSA. Worker complaints initiate many investigations, so you need to say something if you are missing pay.

The process of wage theft enforcement is described below, along with the different methods used to recover unpaid wages and overtime pay.

How to Report Unpaid Wages and Recover Back Pay: Submitting a Worker Complaint

All complaints are confidential. Your name and the nature of your complaint will not be disclosed. The only exception is when it's necessary to reveal your identity (only with your permission) to pursue an allegation.

The type of information you need 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 the 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 evidence of the employer's pay practices is helpful.

The services WHD provides are free and confidential, whether or not you are a documented or legal employee. Importantly, your employer can't terminate you or otherwise discriminate against you in any way for filing a complaint with WHD.

Investigations Into Wage Theft or Back Pay

Along with complaints, WHD selects certain types of businesses or industries for investigations. Sometimes, they will investigate several companies in a specific industry or region.

An investigation involves several steps:

  1. A conference between the WHD representative and representatives of the business. The investigation process is explained to everyone.
  2. Examination of the records to determine what laws or exemptions apply to the business and its employees. These records can include the annual dollar volume of the company. They may also examine documents about the manufacturing, handling, or selling of products.
  3. Examination of time and payroll records, or making transcriptions or photocopies of information essential to the investigation.
  4. Private interviews and fact-finding with individual employees to verify the time and payroll records, identify a worker's duties in detail to determine what exemptions (if any) apply, and determine if young workers are legally employed.
  5. Interviews are typically 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.
  6. The employer will be told whether violations have occurred
  7. The employer will be told how to correct all violations. If back wages are owed, they must pay the employees back.

Recovery of Back Wages

The following are the methods which the FLSA provides to recover unpaid wages and overtime wages:

  1. WHD may supervise payment of back wages
  2. The Secretary of Labor may bring a lawsuit for back wages and an equal amount as liquidated damages*
  3. An employee may file a private lawsuit against an employer for back pay and an equal amount as liquidated damages*, plus attorney's fees and court costs.
  4. 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.

*Liquidated damages are like interest on your missing back pay. If your back pay is $2,000, your liquidated damages will be $2,000.

Penalties for Not Paying Employees

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. 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.

Report Unpaid Wages and Recover Back Pay With an Attorney's Help

If you didn't get what you were owed on payday, you can seek legal advice during a free consultation with a law firm. It is a good idea to start research into your state laws on wages and hours and gather evidence before meeting with your attorney.

Back pay and unpaid wage disputes can be highly contentious. A lawyer can help by arming you with knowledge of your rights and the enforcement mechanisms available in your situation.

Contact a local employment attorney today to learn how they can help you get paid what you are owed.

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