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How Do You Recover Stolen Wages?

Published By | Mar 18, 2022 | Employment Law, Wage: Minimum Wage, Wage: Overtime, Wage: Tipped Employees, Wrongful Termination |

What is wage theft?

Best Wage and Hour Lawyer Answer: Wage theft is the illegal practice by employers of withholding all or part of earned wages of failing to comply with Fair Labor Standards Act (“FLSA”) and related state laws. Wage theft includes minimum wage, overtime, and tipped-wage employees violations.

What is an example of wage theft?

Best Wage and Hour Lawyer Answer: The recently decided case of Walsh v. Sweet Lemon, Inc. provides a good example of wage theft. In the case, District Court Judge Richard G. Stearns sitting in the United States District Court for the District of Massachusetts recently granted summary judgment in favor of 14 employees. In the case, the Court found that the evidence clearly showed that the employer, Thai restaurant, refused to pay employees time and half their regular rate of pay when the employee worked more than 40 hours per week. This problem was compounded by the fact that the employer failed its obligation under the FLSA to keep true and accurate records of the hours worked by the employees as well as the wages paid. Further, despite paying the servers at a lower than minimum wage rate by using the tip credit under the FLSA, the employer kept all of the tips. Lastly, the Court held that the employer’s act of forcing employees to sign false statements and interrogating employees as to whether they participated in the Department of Labor (“DOL”) investigation constituted unlawful retaliation. (If you want another FLSA violation example, check out Wage & Hour: Restaurant Employer Pushes Luck By Not Paying Overtime Wages For 91 Hour Work Week).

Let’s break this down a bit.

Does my employer have to pay time and a half when I work more than 40 hours?

Best FLSA Lawyer Answer: Non-exempt employees covered by the FLSA are required to be paid overtime pay of at least one and one-half times their regular rates for all hours worked in excess of 40 in a designated workweek. (Best Law Reads: Who qualifies for overtime pay?; Overtime Attorney Top Answer: I’m A Manager. Can I Get Paid For Overtime Hours?; Salaried Employee? – Doesn’t Necessarily Mean You’re Not Entitled To Overtime Compensation; Is It Legal For A Company To Not Pay Overtime?).

How is a designated workweek set for purposes of calculating overtime pay?

Best Overtime Attorney Answer: Under FLSA requirements, an employee’s workweek must be fixed and regularly recurring period of 168 hours, which calculates out to be seven consecutive 24-hour periods. The designated workweek can set to start on any given day and at any given time of that day.

Who is responsible for keeping track of time worked?

Best Wage and Hour Attorney Answer: It is the sole responsibility of the employer to accurately and fully keep track of each employees’ time worked. The FLSA does not require that the information be kept in a particular form but does designate that the employer must keep the time, rate of pay, and other employee information relating to pay. The employer must keep these records for at least three years. There are a lot of consequences to an employer for failing to keep accurate wage and hour records, including not being able to dispute the amount of overtime worked and being liable for three years of back wages instead of two. (Best Law Read: Who Is Responsible For Keeping My Hours At Work?)

Can my employer keep my tips?

Best Wage Pool Lawyer Answer: An employer is never allowed to keep tips given to employees under any circumstances. Likewise, bosses, managers, supervisors, and owners are also prohibited from keeping tips given to employees, including through tip pools.  When an employer pays the full minimum wage without taking a tip credit (i.e., paying the tipped employee less than minimum wage), it can include non-tipped employees (i.e., cooks, hosts, and dishwashers) to participate in the tip pool. However, if employer does use the tip credit to pay tipped employees less than minimum wage, it will be a violation of the FLSA to include those non-tipped employees in the tip pool. (Best Law Reads: Can My Employer Keep Part Of My Tips? Get Help From The Best Wage And Hour Attorneys In Ohio!; Can I Be Paid Only In Tips? Help, I Need The Best Wage And Overtime Lawyer In Ohio!).

Can my boss retaliate against me for reporting wage violations?

Best wrongful Termination Attorney Answer: Absolutely not. The FLSA has a specific antiretaliation prohibiting employers from taking any adverse actions against an employee for opposing, reporting, or participating into an investigation regarding minimum wage, overtime, or tip pool violations. Section 15(a)(3) of the FLSA expressly provides that any person, including but not limited to the employer, will violate the FLSA if he or she acts to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” Because the “other manner discriminate” language is broad, acts like interrogating employees or forcing them to sign false statement as a condition of employment will most often be held to be retaliation and a violation of the FLSA. (Best Law Reads: Am I Protected After Reporting Wage Theft Under The FLSA? ; I Was Fired Today For Complaining About Wage Violations. I Need A Lawyer!)

In our Walsh example above, the Court held:

Here, there is no dispute that defendants retaliated against their employees by instructing certain servers to sign false statements about their wages and tips and asking employees if they had spoken to a Department of Labor investigator, in the belief that these employees were involved in an ongoing federal investigation into defendants’ employment practices. Because defendants were acting with (at least) “reckless indifference” to their employees’ federally protected rights under the FLSA, punitive damages are appropriately awarded. (Citation to the record omitted).

What damages can I get for wage theft?

Best Wage Theft Lawyer Answer: At the very minimum, an employee can recover backpay for amounts owed for two years prior to the claim being filed. That period will increase to three years for willful, intentional, or reckless violations of the FLSA by an employer. The employer will also be required to pay liquidated (double) damages unless the employer can successfully show that it reasonably believed that their conduct did not violate the FLSA. Additionally, employees who prevail in minimum wage, overtime, and tip pool violation cases will be paid their attorneys’ fees and costs.

Separately, if the employer is found to have retaliated against the employee in violation of the FLSA, the employee can recover punitive damages as well as emotional distress damages caused by the retaliation. Neither punitive damages nor emotional distress damages are available for minimum wage, overtime, and tip pool violations.

In our Walsh example above, the Court entered a verdict in favor of the 13 workers for $159,899 in back wages and tips ($12,299.92 per employee), and an equal amount in liquidated damages, plus $25,000 in punitive damages, for a total of $344,798 ($26,522.92 per employee). This number will only likely grow as attorneys’ fees and costs are typically awarded in a later judgment entry.

What should I do about wage theft?

Best Wage Theft Attorney Answer: If you even think that the company that you work for is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as required under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are a nonexempt employee that has been misclassified as an exempt or independent contractor, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at Spitz will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call our Cleveland, Columbus, Cincinnati and Toledo attorneys right now. Do not wait. The longer that you wait, the less that your claim may be worth.

Disclaimer:

The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime pay under the FLSA?”, “I’m I supposed to be paid time and half when I work 12-hour shifts”, “My paycheck is short” or “What do I do if my manager is keeping my tips,” your best option is to contact an FLSA attorney to learn your rights and decide the best way to protect them. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.