The first thing any employee should do if they have not been paid is to inform their employer’s HR. If the HR personnel do not respond and you still do not receive your usual paycheck then your employer may be guilty of wage-theft. The Fair Labor Standards Act (FLSA) prevents employers from not paying their employees. If an employer fails to pay the agreed wages, then it is violating the FLSA. You can 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 failing to pay wages or employees’ benefits for work already completed. There are several ways wage theft can take place including:
- failing to pay an employee any wages at all;
- failing to pay overtime;
- failing to pay the minimum-wage;
- misclassifying an employee as an independent contractor;
- illegal deduction from a paycheck
- forcing an employee to work "off the clock;"
- failing to pay annual leave or holiday entitlements.
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 is to notify your employer’s HR because it could be an honest mistake. This gives you the chance to put things right before you lose any more wages. However, if you notify them and they do nothing, here are some steps to take. You will need to contact the Wages and Hour Division of the Department of Labor with your complaint by completing an unpaid wage claim form.
You Will Need `to Include The Following:
- your full name;
- your contact address and phone number;
- name of your employer;
- location of your employer’s company if it is different from your workplace;
- your employer’s phone number;
- manager or owner’s name;
- details of your job;
- how and when you were last paid (e.g. by check each Friday).
You should also provide other information if you can that may be useful, like copies of pay stubs and personal records you have kept of hours worked.
The official designated by the WHD to investigate your complaint will typically request a response from your employer regarding the wage theft. If your employer responds and admits to wage theft the official may arrange mediation to solve the matter between you and your employer and get your unpaid wages paid in full. If your employer denies wage theft, then further investigations will be carried out.
If it is found a violation of the FLSA has taken place the WHD may decide to file criminal proceedings which could result in heavy fines or even imprisonment if your employer has committed more than one offense. As well as your unpaid wages, you may receive damages and attorney’s fees. Your employer is not allowed by law to fire you for filing a complaint about non-payment of wages.
Keep Track of All Communications
You should keep hard copies of any communication with your employer’s HR such as:
- the date and time that HR was made aware of the wage theft;
- the HR response to your message;
- any follow ups that you made with HR.
Gathering Evidence of Wage Theft
The official from the WHD may ask you for some evidence proving your wage theft. This should include:
- comparing pay stubs to hours you have actually worked;
- providing a copy of your employment contract.
The official wants to make sure that nothing has been overlooked related to your employment contract before further action is taken to get your unpaid wages 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 claim. An employment lawyer can also present tell you the options for challenging your employer’s wage theft and discuss whether your case is worth pursuing.
Even though the WHD may take your employer to court, this may not get you the maximum amount of damages for having to endure the financial loss of your wage theft. 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.
