How to Claim Unpaid Wages and Overtime
How to Report Unpaid Wages
In the United States, if your employer has failed to pay you the minimum wage or has withheld overtime pay, then you can report the violation to either the federal government or to your state agency. The process should be similar in other countries as well. You then provide the agency with relevant information about your employer and the amount of wages you are owed. After reporting the violation, you can file a lawsuit for compensation.
Reporting to the Federal Government
Contact the Department of Labor.You should call the Department of Labor (DOL) at 1-866-487-9243. You will then be transferred to a local office. There are over 200 local offices around the country. Your local office will help you complete a claim for unpaid wages.
Provide helpful information.Once you are connected to a local office, you will have to provide information in order to complete your claim. Provide the following:
- your name
- your contact information (phone and mailing address)
- name of the company which has not paid your wages
- location of the company
- phone number for the company
- name of the manager or owner
- type of work you performed
- when and how you were typically paid (e.g., cash once every two weeks)
Supply helpful supporting documentation.You can help your claim if you provide information about the amount of wages you haven’t been paid. You should look to see if you can provide the following supporting documentation:
- copies of pay stubs
- record of your hours worked
- copy of any employment contract
- any other information about your employer
Wait for the results of the investigation.After receiving your complaint, the DOL will contact your employer and perform an investigation. The investigation is confidential, and your identity should not be disclosed. Instead, the DOL will ask to review your employer’s payment records.
- An investigator might contact you and other employees for an interview. You should make yourself available and answer all questions the investigator might have.
- At the end of the investigation, the Department will meet with your employer and tell them how to correct their violation of the wage laws.
Receive your money.The DOL can also bring an enforcement action against your employer for the unpaid wages you are owed. The DOL can also recover “liquidated damages,” which is a penalty in the same amount as your unpaid wages. This penalty will be paid directly to you.
- If the DOL brings an enforcement action, then you don’t have to bring your own individual lawsuit. Instead, the DOL files a lawsuit in federal district court on your behalf.
- However, if the federal government doesn’t sue on your behalf, then you may have to bring a lawsuit if your employer doesn’t voluntarily pay the wages owed to you.
Contact the appropriate agency in other countries.If you don’t live in the United States, then you should report unpaid wages to your appropriate government agency. You can find it by searching for “your country” and “wage violation” using an Internet search.
- In Canada, for example, you can report unpaid wages to the Employment and Social Development office. They have an online form you can complete. You may also call 1-800-622-6232.
- In Australia, you should contact the Fair Work Office for assistance in reporting unpaid wages.
Reporting to Your State Government
Find your state reporting agency.Each state should have an agency that collects complaints about unpaid wages. You can find this agency online by searching for “your state” and “unpaid wages.”
- In Texas, for example, the agency is the “Texas Workforce Commission.”
Get a form.Your state agency probably has a complaint form you can use. Visit your agency’s website or call and request the form.You will need to complete and submit the form.
Complete the form.Use a typewriter or print using black ink. Each form will be slightly different, but they generally will request similar information. For example, the following may be requested:
- your name and contact information
- contact information for your employer
- the type of work you performed
- when you started working for your employer and your last day working (if you stopped)
- your regular scheduled payday
- your rate of pay
- your agreed work schedule
- whether taxes were deducted
- information about the unpaid wages
- your signature under penalty of perjury
Submit the complaint form.Make a copy of the completed complaint for your records. Then mail the complaint to the address listed on the complaint form. You can mail it certified mail, return receipt requested so that you will know when the agency has received it.
- You should also include helpful documents, such as a recent payroll check or stub, as well as a copy of your employment contract (if you had one).
Don’t delay.You don’t have forever to submit a complaint. Instead, your state will set a deadline. In Texas, for example, you have 180 days from the first day that wages were owed to you.
Wait for the results of the investigation.After receiving your complaint, the state agency should reach out to your employer to ask for a response. Your state agency may also assign an investigator to your case. He or she could call you and your employer to ask questions.
- After hearing from your employer, the state agency will make a decision. It should send the decision in a letter to both you and your employer.
Receive your unpaid wages.If the agency agrees with you that your employer owes you wages, then the agency should get the money for you. The agency may have to sue if the employer will not cough up the money. The agency could also put liens on your employer’s property to encourage payment.
Filing a Lawsuit
Meet with an attorney.You will probably benefit by meeting for a consultation with an employment attorney to discuss your case. You can explain your situation to the attorney, and they can advise you about the strength of your case.
- Also ask about what court you should sue in. If your employer violated federal employment laws, then you can sue in federal district court. However, if your employer violated only your state employment law, then you would file in state court.
- Many states have overtime and minimum wage laws that are the same as the federal law. However, your state may have more generous benefits. For example, the federal minimum wage is .25 an hour. In New York, however, the minimum wage is .00.If your state law provides more generous benefits, then you generally will sue under your state law.
- Although costs might be a concern, you should think about hiring the lawyer. Under federal law, you could win attorneys’ fees, court costs (such as filing fees) and “liquidated damages,” which is a penalty equal in amount to the wages you are owed.In this situation, an attorney might be affordable.
Avoid delay.If you think you want to sue your employer, then you shouldn’t delay. Generally, you have only two years to sue under federal law, unless the violation was willful, in which case you have three years.
- Your state law might have different deadlines. In any event, you should promptly meet with an attorney and begin planning to start your lawsuit.
Get a form complaint.You start a lawsuit by filing a “complaint” in court. In this document, you identify yourself and your employer, and you also describe the circumstances of the dispute. Many courts have printed, “fill in the blank” forms you can use. You should check on the court’s website or ask the court clerk.
- If you are suing in federal court, then there is a form complaint you can use available online.
Format your own complaint.Your court might not have a form complaint you can complete. In this situation, you will need to create your own. You should open a blank word processing document and set the font to Times New Roman or Arial 14 point.
- Also make the document double-spaced and provide a one-inch margin on each side.
Insert the caption information.The “caption” appears at the top of the first page of any court document. The caption will remain the same throughout the lawsuit. It contains the following:
- The court’s name at the top. For example, “Supreme Court of the State of New York, County of Suffolk” in all caps, bold.
- The names of the parties. On the left-hand side, you should put your name and then tab down three lines. Then put a “v” and tab down a few more lines. Then enter the name of your employer.
- On the right, beside your name, you should insert “Case No.” and then leave a blank space for the case number, which you will get from the court clerk when you file the lawsuit.
Provide a brief introduction.In your introduction, you can identify yourself and whether you are representing yourself. For example, you can write “Plaintiff Jon Jones, representing himself pro se, complains and alleges as follows.”
Identify the parties.Using numbered paragraphs, you need to identify yourself and the defendant. You should sue both the individual responsible for not paying you wages and also the company. Identify the following:
- Your identity. Identify where you live: “Jon Jones is an individual who currently resides in New York City.” You can provide your full address.
- Your employer’s name and address.
- The name of the business you worked at. State whether it is a corporation.
Tell the court it has the power to hear the case.A court can’t listen to your dispute unless it has power (called “jurisdiction”) over the subject matter of the dispute. After identifying the parties, type a section titled “Jurisdiction and Venue.”
- If you are suing in federal court, then tell the court it has jurisdiction under federal law: “This Court has subject matter jurisdiction over Plaintiff’s federal law claims pursuant to 28 U.S.C. §§ 1331.”
- If you are in state court, then tell the court it has jurisdiction because the defendant is domiciled in the state. You may have to read your state’s Rules of Civil Procedure to find the precise rule number. For example, someone suing in New York state court could write: “This Court has jurisdiction over this action pursuant to the New York Constitution, article VI, § 7(a) and CPLR § 301 and because all parties are domiciled in the state of New York. Venue is proper in Suffolk County pursuant to CPLR § 503 because Defendants resided in Suffolk County at the time Plaintiff started this action.”
Identify the law your employer violated.Use a heading like “First Claim for Relief: Minimum Wage and Overtime Violation: Fair Labor Standards Act.” Then state that your employer willfully violated the law and identify the wage law your employer violated. If you have a second claim, then type “Second Claim for Relief: ….”
- Provide relevant details, such as the dates of employment, your job title and kind of work you performed, as well as the rate and method of payment. If you are suing for overtime, then tell the court the dates you worked the overtime.
- You also need to allege that your employer violated the law. For example, you could write: “Defendant willfully failed to compensate Plaintiff the minimum wage for the hours he worked, in violation of the FLSA, 29 U.S.C. § 206(a). Defendant also willfully failed to pay Plaintiff overtime compensation for each hour he worked in excess of forty hours in a workweek in violation of the FLSA, 29 U.S.C. § 207. Plaintiff is entitled to recover from Defendant his unpaid minimum wages, overtime wages, an additional equal amount as liquidated damages, reasonable attorney’s fees, and the costs of the action in an amount to be determined at trial.”
Sign your complaint.After you list all of your claims against your employer, you should include the words "Respectfully submitted" and then insert a signature block underneath. Include your name, address, and phone number.
File your complaint.Make several copies of your complaint. Take the completed complaint and copies to the court clerk and ask to file.Depending on your court, you may have to file some copies along with the original. Always keep one copy for your records and another copy for your employer.
- You will probably have to pay a filing fee, which will vary depending on your court. Call ahead to ask the clerk for the amount and acceptable methods of payment.
Serve notice of the lawsuit on your employer.You have to give your employer a copy of your complaint and a “summons,” which you can also get from the clerk to fill out.The clerk needs to sign the summons before you serve it on your employer.
- Generally, you can serve the summons and complaint by having someone 18 or older make hand delivery. This person cannot be you or anyone who is a party to the lawsuit.
- For example, you could hire a private process server to make delivery. You can find them in your phone book or online.
Continue on with the lawsuit.Your employer will respond to your complaint by filing a response. You should read it carefully. Generally, you will then have to meet with the court to come up with a schedule for the rest of the lawsuit.
- It is illegal for an employer to retaliate against you for reporting unpaid wages.Retaliation can take many forms: demotion, reduced hours or pay, or termination. If you think you have been retaliated against, then see Sue for Wrongful Termination for more information.
- If you belong to a union, then you should contact your union representative. Unionized workplaces often have formal grievance procedures you must follow.
- In some circumstances, failure to pay wages is also a crime.However, you will still report the unpaid wages to your government agency, which is capable of bringing criminal charges, if necessary.
Video: UNPAID WAGES: CA Labor Code § 203 WAITING TIME Penalty
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