Sometimes, an employee may not receive the pay that they are entitled to from their employer. A remedy for this is to require that the employer pay the back pay. The term “back pay” refers to the amount that the employee should have been paid but was not paid. Back pay can include past wages as well as benefits such as bonus, increment or overtime to which an employee is entitled to but did not receive..

Who Gets Back Pay?

Hourly and salaried employees can receive back pay. Other types of employees, such as freelance workers, part-time employees, and consultants, may also receive back pay. 

When Are You Entitled to Back Pay?

Employees are entitled to back pay anytime they lose wages and benefits because of wrongful employment practices. Most back pay awards are given based on wrongful termination due to a hostile work environment or work employment harassment. Some examples of wrongful employment practices are:

  • Firing an employee because of employment discrimination;
  • Denying promotions which were promised;
  • Withholding overtime pay; or
  • Withholding wages to stop an employee from reporting misconduct or for reporting previous misconduct.

Employees can also get back pay when an employer retroactively increases wages and benefits.

How Can Unpaid Wages Be Recovered?

Back pay can be recovered in different ways. For example, let’s say an employee is supposed to get a promotion in terms of an increase in salary but does not receive that pay raise for a month. In this case, the employee would receive the back pay in the subsequent paycheck. Sometimes, a court may find that a company engaged in wage violations. In such a case, there will be a court order which will require the company to provide the affected employees with back pay. The Wage and Hour Division of the Department of Labor may also get involved to ensure that the back pay is given.

Back pay can be ordered under the Fair Labor Standards Act (FLSA) under different federal contract labor statutes. The FLSA provides for recovering unpaid minimum and/or overtime wages through the following methods:

  • The Wage and Hour Division can supervise the payment of back wages;
  • The Secretary of Labor can bring a suit for back wages as well as an equal amount as liquidated damages;
  • An employee can file a private suit for back pay and an equal amount as liquidated damages in addition to attorney’s fees and court costs; or
  • The Secretary of Labor can obtain an injunction to restrain any person from violating the provisions of the FLSA. This includes the unlawful withholding of proper minimum wage and overtime pay.

Under the FLSA, employees are entitled to receive at least the minimum wage in back pay. If they have been wrongfully denied overtime pay, they are entitled to the standard overtime pay rates. If an employee has been paid back wages under the authority of the Wage and Hour Division or if the Secretary of Labor has already filed suit to recover the wages, then that employee usually cannot bring a private lawsuit. A two-year statute of limitations generally applies to the recovery of back pay. However, in the case of intentional violations, a three-year statute of limitations applies. Under the Davis-Bacon Act, back wages also are available for underpayments to employees.   

Should I Contact a Lawyer?

Wrongful employment practices, such as withholding wages or promotions, are prohibited. If your employer is engaging in such practices, they can face serious penalties. In order to fight for the wages and benefits that you believe you should get, it may be helpful to consult an experienced employment law attorney. Your attorney can represent you if you want to file a private lawsuit and they can also help you file your claim under the Fair Labor Standards Act (FLSA).