If you haven’t been paid your wages, overtime, earned bonuses or commissions, sick pay, holiday pay, or vacation pay, you must be wondering, “can I sue my employer for not paying me correctly?”
Yes, you can sue your employer if you have not been paid your wages, bonuses, commissions, and other benefits. This violation is called wage theft.
Forms of wage theft
Wage theft can take many forms. Each type of wage theft will require you to present different documents. It is recommended that you consult with a lawyer, regardless of the court or tribunal you plan to lodge your complaint because a wage and hour lawyer will be able to guide you through the process.
You are entitled to an itemized payslip for your work. This itemized payslip will show any deductions that the employer made from your gross pay.
These deductions may include:
- Federal and state income taxes
- Social security
- National insurance contributions
- Pension contributions
- Recovery of overpaid wages
- Repayment of salary advances
- Wage garnishments and levies for child support and taxes
- Certain training costs
- Private medical insurance for family members
Some of the above deductions require a written agreement between the employer and employee. If you have any questions regarding deductions made by your employer, you can consult a wage and hour lawyer who can provide you with advice on whether the deductions made in your payslip are authorized or unauthorized. If you have unauthorized deductions, it means that the employer is not paying you correctly.
Overtime pay violations
The Fair Labor Standards Act requires employers to pay employees an additional overtime premium equivalent to 50% of their wages. This overtime premium is paid for work rendered in excess of 40 hours per week. For example, if you are being paid $15 per hour and you worked 50 hours for that week, you will be entitled to your regular rate of $15 per hour for 50 hours plus an overtime premium of $7.50 for the 10 hours worked in excess of 40 hours.
- Employee misclassification
There are some employees, such as managers, who are exempted from the payment of overtime. What some employers have been doing in order to cut labor costs is to call their employees “managers” even if these employees’ duties do not include managing any people. For example, an employee will be called client service manager, when all they do is attend to customer inquiries and some record-keeping tasks. Because this employee is now called a client service manager, overtime is not paid.
In determining whether an employee is a manager, the title or position is not given any weight. It is the employees’ duties that control. For this reason, if you have been called manager but do not have any managerial duties, you are probably underpaid your overtime. Consult with a wage and hour lawyer to ensure that you are paid what you are worth.
- Falsifying the number the hours worked
Some employers deliberately and consistently miscalculate the hours worked in order to pay less overtime. This might include rigging the timeclock or falsifying timekeeping records. Take time to review your payslip and your own time records to ensure that you are being paid the amount you are entitled to.
- Working off-site outside of office hours
Some employers might require you to work even when you’re outside of the office already. Examples of these practices are:
- Requiring you to respond to emails outside of office hours
- Working during meal periods
- Not including training hours as hours worked
- Not including travel for certain employees and certain tasks as hours worked
- Requiring you to work from home without paying you for that work
When you’re outside of the office, you are not able to clock in the time you’ve been working.
Minimum wage violations
Each state has established its own minimum wage (usually higher than the federally mandated minimum wage) which employers have to pay to their employees. Although some workers are exempted from minimum wage (such as independent contractors, outside salespeople, and apprentices), most employees are covered by the minimum wage.
Even tipped workers, such as waitresses, are covered by the minimum wage. Employers can pay tipped workers a special hourly rate, for as long as the tips (called tip credit) are enough to at least make minimum wage per hour. The employer must inform you of this tip credit procedure in writing and should keep track of the tips to ensure that you are earning minimum wage.
If you have been wrongly classified as an independent contractor or have issues regarding the computation of your wages, you should consult a wage and hour lawyer to know your options and remedies.
Other types of violations are:
- Withholding of last check/payment
- Reducing hourly rate without prior notice
- Bounced paycheck due to insufficient funds
- Refusing to pay promised bonuses, holiday pay, or vacation pay
Where can I sue my employer for not paying me?
There are different remedies in suing your employer for not paying you. You can complain with the New York Department of Labor, with the federal Wage and Hour Division, or file a lawsuit in court.
If you are asking can I sue my employer for not paying me correctly, you are thinking of suing them in court. However, labor rules give you vaious other options as well.
Wage and Hour Division
The federal Wage and Hour Division conducts investigations on employers upon submission of a formal complaint. Complaints are confidential and your identity will not be disclosed to your employer unless necessary.
In this case, however, if the WHD finds that you are entitled to your wages, they can only supervise the employer’s payment of back wages. If the employer fails to pay you your back wages, the Secretary of Labor may bring the lawsuit for back wages plus liquidated damages. If you bring the private lawsuit yourself, you can request back pay, liquidated damages, attorney’s fees, interests, and other court costs. The Secretary of Labor can also obtain an injunction to restrain an employer from violating the FLSA, including the withholding of wages and overtime pay.
New York Department of Labor
You can file a complaint with the New York State Department of Labor for as long as your work meets certain criteria, such as having performed work in New York as a regular employee and not a freelancer or independent contractor and without earning more than $900 per week.
You need to fill up a particular form, depending on your claim, whether it’s for unpaid wages, as a freelancer, or discrimination. Filing it here, however, can take up to four years to get resolved and might result to a lower amount of recovery.
Filing a private lawsuit
Your best option in recovering backpay is filing a private lawsuit against the employer. If you file with the WHD, if the employer doesn’t pay, you still need to file a lawsuit. With the New York Department of Labor, it can take longer to litigate. For this reason, filing a lawsuit is your best option. People asking can I sue my employer for not paying me correctly usually have this option in mind.
Before filing a private lawsuit, there are some steps you might want to take:
- Grievance procedure within the company
Each company will have its own grievance procedure stated in the company manual. It might involve raising your claim first with your supervisor, and if unresolved or resolved against your favor, going one step up and raising it with the human resources department.
Following the grievance procedure stated in the company manual or policy will allow your employer to resolve your complaint without going through the expensive process of litigation.
It is advisable that you are already represented by a lawyer at this time so that your employer knows you are serious about your claim. This might ensure that your claim is settled right away without going through litigation.
- Demand letter
If the claim is not settled through the company’s grievance procedure, your wage and hour lawyer should send a demand letter to your employer that if they fail to pay within a particular period of time, you will file your complaint for wage theft, which should already include a request for liquidated damages, interest, punitive damages, attorney’s fees, and costs, in addition to the back wages.
- Lawsuit in court
If your lawyer’s demand letter fails to yield the results you desire, it is time to file a complaint with the court. Different statutes of limitations govern depending on your claim. The statute of limitations limits your period to file a complaint.
Under the Fair Labor Standards Act, employees have two years to file claims on wage and hour violations and three years, if the employer’s act was willful or reckless. Under New York law, however, an employee has 6 years file a claim for wage and hour violations.
Here are other statutes of limitations, depending on the claim:
- Claims under Sarbanes-Oxley Act: 180 days
- Claims under Civil Rights Act of 1964 (Equal Employment Opportunity Commission), Americans with Disabilities Act, and Age Discrimination in Employment Act: 300 days
- Defamation and intentional torts against employers: 1 year
- Claims under Family Medical Leave Act: 2 years
- Claims under New York City/State human rights law, tortious interference, civil rights abuses, Dodd-Frank Act, sexual harassment (general rule): 3 years
- Claims of racial discrimination under 42 USC 1983: 4 years
- Breach of contract and fraud: 6 years
When you sue your employer for not paying you, you can claim for the following:
Unpaid wages can be in the form of unauthorized deductions or failure to pay overtime pay and vacation pay (just to name a few examples). To recover this amount, you need to submit evidence that would establish that you worked for these hours, the agreed rate of compensation, or the company policy that earned unused vacation time or sick leave should be paid.
Interest on the back wages
If you are successful in your claim, you will be entitled to statutory interest on your unpaid wages.
In some cases, liquidated damages can substitute the interest on the unpaid wages. In New York, liquidated damages can reach an amount equivalent to your unpaid wages. For example, if your unpaid wages is $5,000, you can receive liquidated damages of another $5,000.
In labor claims for unpaid wages, the employee is entitled to attorney’s fees if his claim is successful.
Court costs and other legal costs
A successful claim will also entitle the employee to payment of court and other legal costs. These include court fees for filing and costs for discovery and trial.
Wage statement penalty
In New York, employees must furnish employees with a wage statement for each pay period, usually weekly. This wage statement includes information regarding the period covered, the hours worked, the pay rate, deductions, and other relevant information. If the employer does not provide you with this wage statement, you can get $250 for each day of violation up to $5000.
Notice of pay rate penalty
Under New York law, employers should also provide you with a notice of pay rate at the time you are hired. This notice includes the company’s business name, your pay rate, and other information. If you don’t receive the notice of pay rate within 10 days from the time you begin working, you can get $50 for each day of violation up to $5000.
Employer’s reaction to labor claims
Once you file a claim for unpaid wages, your employer will not be happy about your action. Your employer might try to demote you, lower your pay rate, or reduce your hours. They may also try to fire you on the ground that your performance is not satisfactory. This can be considered retaliation, which can give you another basis for filing another claim and receiving a greater amount.
To minimize the risk of retaliation, a lawyer might be able to help. When your employer knows that you are represented by a lawyer, the employer might refrain from committing other acts that could lead to more causes of action for the employee.
When your employer has not paid you the amount you are rightfully entitled to, you can sue your employer for not paying you. Labor claims, however, can be complex regarding the statute of limitations, your different causes of action, and the amount of damages you can ask for.
If your employer is committing a labor standard violation against more employees, you may have a class action. A wage and hour attorney can give you advice on your labor legal issues. Some claims can be accepted by attorneys on a contingency basis, depending on the evaluation of your case.
If you are asking can I sue my employer for not paying me correctly, you may need a lawyer. We at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at email@example.com.