The first thing you should do if you have not received your overtime pay from your employer is to inform your employer’s HR. If the HR officer fails to respond to your concern and you still have not received your overtime, your employer may be guilty of wage theft. The Fair Labor Standards Act (FLSA) determines the amount employers need to pay in overtime and when it should be paid. If an employer fails to pay the agreed amount, then it is violating the FLSA. You may be able to file a complaint with the Department of Labor’s Wages and Hours Division (WHD) which is responsible for investigating violations of the FLSA.
Overview of Wage Theft FLSA Violation
Wage theft according to the FLSA is when you fail to receive wages or employees’ benefits for work already completed and this includes overtime.The FLSA states that unless exempt, employees protected by the Act should receive overtime pay for all hours worked over 40 in a single workweek. The rate should not be less than time and one-half of thenormal pay rate.
There are several ways wage theft can take place including:
- failure to pay overtime;
- wrong classification of an employee as an independent contractor;
- making illegal deduction from a paycheck;
- making an employee work "off the clock;"
- failure to pay the minimum-wage;
- failure to pay annual leave or holiday entitlements;
- failure to pay an employee any wages at all.
What to Do If You Are a Victim of Wage Theft
One of the first things to do when you believe you are a victim of wage theft because you did not receive overtime is to notify your employer’s HR because it could be an honest mistake. This gives you the opportunity to remind your employer you have not received overtime pay. However, if you notify them and nothing is done to sort out the problem, there are some steps you could take. The most important step is contacting the Wages and Hour Division of the Department of Labor with your complaint about not receiving overtime by completing an unpaid wage claim form.
You should include the following:
- your full name;
- your contact address and phone number;
- location of your employer’s company, if it is different from your place of work;
- manager or owner’s name;
- name of your employer;
- your employer’s phone number;
- details of your job;
- when and how you were last paid (e.g. by check each Friday).
You could also include other information, if possible, that might be useful such as copies of pay stubs and personal records you have kept of all the hours worked including overtime.
The officer assigned by the WHD to take up your complaint will typically request a reply from your employer regarding the unpaid overtime. If your employer responds and admits that the overtime was not paid the officer may solve the matter by telling your employer to pay the overtime owed to you. If your employer denies wage theft, then the officer will need to carryout further investigations.
If it is found that a violation of the FLSA has taken place the WHD may decide to request a court hearing which could result in your employer having to pay a large fine or even be imprisoned if it has committed more than one wage theft offense. As well as your overtime you may be eligible to receive damages and get your attorney’s fees paid too. Your employer by law is not permitted to fire you for submitting a complaint about non-payment of overtime.
Keep Track of All Communication
You should keep all copies of any type of communication with your employer’s HR such as:
- the date and time that HR was told that you hadn’t received your overtime;
- the HR response to your communication about unpaid overtime;
- any follow ups that you made with HR.
Gathering Evidence of Wage Theft
The officer from the WHD could ask you for some evidence that proves you have not been paid overtime. This could include:
- providing a copy of your employment contract;
- comparing pay stubs to hours you have actually worked;
The officer wants to be reassured that nothing has been overlooked in relation to your employment contract before any action is taken to get your overtime paid to you.
Speak With an Attorney
If you speak with an employment attorney about your wage theft s/he will ensure you have sufficient evidence all in one place to support your unpaid overtime claim. Your attorney can explain to you the damages you are entitled to so that the maximum amount can be pursued. One thing is certain that when your employer is called to court it will have an attorney contesting your wage theft claim and the amount of damages you wish to be paid to you.