What You Need to Know as an Employee
Employees have rights when it comes to getting the payment they deserve for the work they do under the employment laws and these rights are outlined in detail under the Fair Labor Standards Act (FLSA) and other state and federal employment statutes. As news, article and blogs, such as this one, have recounted numerous times, violating these employment laws can lead to a lawsuit against that employer. A few of the most common violations by employers include: failing to pay minimum wage, failing to pay workers for overtime hours worked, failing to pay wages for commissions and failing to pay workers when they are laid off or fired.
The FLSA enforces certain provisions to protect employees from an employer who fails to pay them for the work they have put in. While the FLSA governs wages, there are also state wages, hours, and child labor laws, that prohibit child labor and harmful jobs, which are enacted for the protection of employees and consumers . If you believe that your employer has violated any of the above wage and hours provisions that an employee is entitled to under employment law, you can file a complaint with the Wage and Hour Division of the FLSA. When submitting a complaint, you must submit a written complaint stating the required compensation that you are owed and how the employer failed to pay you for that work. An oral complaint is allowed if an employee is unable to write the complaint on their own. The request for payment must also adequately explain the amount of unpaid wages or compensation owed, and the date or dates when the work was performed. In addition, you must make sure that you are still within the filing period of two years or three years depending on when the alleged wage violation took place. Once the complaint is received, the Wage and Hour Division will notify the employer of the claim against them but usually not until a thorough investigation is completed first.
When to Sue in Court
When You May Need to Consider Legal Action
If you ever find yourself in a situation where payroll mistakes are repeated or your employer refuses to correct their errors, it should be a sign that they may be using these payroll errors as a way to avoid paying you what you’re owed. If you have a contract with them that’s important, too – the existence or structure of a contract can absolutely mean that unpaid wages can put a company in hot water legally.
These actions could be used as an effort to keep you from getting a paycheck you’ve worked hard to earn. If payroll mistakes are repeated over and over again and your management or accounting staff refuse to rectify the problem, then you may be forced to consider legal action – which will almost certainly include gathering documentation of your employment, including your time records, contract if you have one, and any other necessary documentation for your case.
The Legal Process of Suing for Back Wages
Suing for unpaid wages is rarely simple and rarely a do-it-yourself job. Here is a step-by-step approach that will help you understand the process and decide whether it is to your advantage to hire a lawyer and get good legal advice before starting:
- File a claim with the appropriate government authority. Strict compliance with the rules is very important, but this does not require a lawyer.
- If you do file a claim with the government and they find in your favor, the company will be notified and have a chance to appeal. If you do not get what you want through the government system, you have a better chance of success in going to court.
- If you file a court complaint without filing with the government first, you may be required to wait until you receive a Right-to-Sue letter from the government wage and hour authority before you can go to court.
- Gather all evidence you can get your hands on. This will include paystubs, bank records, tax returns, employer communications, journals and diaries, and any other documentary evidence in your possession, control or available under subpoena. Gather names and addresses of co-workers, with a brief description of their knowledge or information they might have. Do not include social security numbers. Do not give up if you don’t have much information at your finger tips. You will get discovery rights, which require the company to give you the information you need and won’t stall the case because you don’t have the required information at the start.
- Go to court and present your evidence and witnesses before the judge and jury. You can choose to have a jury or some courts may give you a bench trial (judge alone). The other side cannot do this without your consent.
Possible Alternative Forms of Dispute Resolution
In contrast to filing a lawsuit, the United States or your state might have alternative dispute resolution processes by which you directly engage a mediator, who is an expert in employment law, to help you resolve the issues. This is typically accomplished in a setting where you and your lawyer sit down with the mediator and representatives of the employer try to craft a solution through discussions with the mediator.
The mediator does not decide the case as an arbitrator would, but helps bring both sides together and helps facilitate the potential resolution of the issues. In all likelihood, a successful resolution is not possible without the strong representation of an experienced lawyer that you trust .
One potential benefit of resolving the case through mediation rather than a lawsuit is the privacy involved. It is very likely that once you file a lawsuit, the details of how it is handled and the outcome will be available to the public. In contrast, through mediation the results can be shouldered confidentially. However, confidentiality is not always guaranteed, depending on how the mediation is structured.
Another benefit to mediation is that it usually involves a more cost-effective and quicker solution to the problem than having to go through the lengthy process of discovery, litigation, appeals, etc. A successful mediation process could put money in your pocket that you would not otherwise receive for a very long time through motions, discovery, trials, and other litigation methods.
The Possible Outcomes of a Wage Dispute
As with any kind of lawsuit, there are a number of different outcomes employees can expect in cases concerning unpaid wages. Many of these lawsuits settle, and some employers may decide to pay what they owe as soon as possible, even before a lawsuit is filed. The employer sends the employee a settlement agreement to sign, which details the compensation that will be sent. However, in many cases, the employer denies any wrongdoing and forces the employee to sue. When an employee sues, there are several potential outcomes.
When the employee wins, in virtually all cases they recover the compensation they sought through the lawsuit. This is often collected in the form of a judgment, which is a court order for the employer to compensate the employee for unpaid wages.
Another possibility following a win is the acquirement of lost benefits for the suing employee. In certain cases it can be extended to others still employed by the company. This is more commonly seen in larger unemployment law class action lawsuits than in single employee judgments.
Sometimes, employees who win a lawsuit against the company will be entitled to collect court costs and attorney fees from the employer. Never has an employer been relieved of paying these fees, even when the lawsuit was frivolous.
There are a few other potential outcomes of lawsuits for unpaid wages. When the employees win, they could be offered their job back — their previous position, with the same responsibilities and salary — with back pay recovered. In some cases, if the employee is offered a new position instead of the old one, they may accept the new position and deregulate the lawsuit against the company.
In some cases, an employee may decline to work for the employer after the lawsuit is settled. Once the employee wins, their relationship with the employer may no longer be strong, and their credibility will have been damaged. In these cases, it’s often in the best interest of the employee to simply move on.
When to Consider Hiring a Lawyer for Claims of Unpaid Wages
Once you have calculated your damages, you should consider hiring an attorney. You may be entitled to recover your attorneys’ fees from your employer. You should speak with an attorney to determine whether this is possible in your state. If you are entitled to attorneys’ fees and choose to represent yourself in the litigation, you may be at a distinct disadvantage. Your employer will have an attorney, while you will be on your own. You may need to file legal documents, spend hours taking depositions of witnesses, and set up a hearing regarding the case. An attorney may be more equipped to deal with the complexities of the case. An attorney is able to gather information and understand fully your claims. Consider scheduling a consultation appointment with an attorney. At the consultation, the attorney will likely ask you questions related to your unpaid wages, your work schedule , and your former employer. The attorney will want to explore all of your claims and may ask you questions about your former employer to ensure that there are no missed claims. At your consultation, you should ask the attorney how many years they have been practicing law and handling employment law cases. Ask them how many cases like yours they have handled, and what their success rate is in winning cases and getting settlements for clients. You should also ask the attorney about their fee schedule. Some attorneys will charge a retainer fee. Others will not even charge a retainer fee, being paid only if you win. If you cannot afford to pay the attorney’s fees up front, some attorneys will be willing to wait until you win the case to charge you. An attorney will evaluate the law in your case and inform you whether you have a case against your past employer. They will also inform you as to the best way to proceed.