Why Are Wages and Salaries Not Paid?
An employer may not pay wages and salaries when they should for various reasons. An employer may forget to pay an employee on time. An employer may also fail to pay wages for a reason not allowed by law.
For example, an employer may fail to pay overtime when federal or state labor laws require it. An employer may fail to pay the minimum wage when legally required. Other reasons may include discrimination. An employer discriminates when it does not pay an employee because of an employee’s gender, disability, race, or religion.
Sometimes employers do not pay employees because the employer does not have the money to cover their payroll. Employers might also withhold wages as retaliation for an employee’s whistleblower complaint. Whistleblower complaints are about unethical, illegal, or unsafe workplace practices.
What Laws Protect Employees Who Have Not Been Paid?
States and the federal government have labor laws. These laws set minimum wages and protect workers from wage theft. Wage theft occurs when an employer intentionally does not pay employees the full wages that employees have earned and are owed.
Many states have minimum wages that are higher than the federal minimum wage. Their labor laws may be stricter in other ways than federal labor laws. State laws may require employers to give employees written notice of how much and how often they will be paid. Federal law also requires certain employers to post information about the Fair Labor Standards Act (FLSA).
Employers who provide this notice must then do what it says. In addition, several states have laws requiring employers to pay wages within a certain period, e.g., 2 weeks. It is considered illegal if the employer fails to pay within that period.
Even if someone is not authorized to work in the U.S., they are protected from wage theft by the federal FLSA. An undocumented worker can file a complaint with the U.S. Department of Labor to recover unpaid wages. They also have the right to sue their employer in federal court.
What Can I Do to Recover Wages or Salary?
Once a person learns that they will not receive their paycheck on their usual payday, or if they receive less than they should, they want to be sure they keep a record of the hours worked during the relevant pay period. They also want to document any expenses they incur because they receive their paycheck late.
A person should first check with their employer and ask for an explanation. A simple mistake of some kind may be the cause of the problem. If there has been a bank error, the bank may be willing to cover any extra expense the person incurred. If there has been a bank error, the bank may be willing to cover any extra expense the person incurred. This also ensures that the employee did not fail to submit records for their hours and is not at fault for the non-payment.
Federal law requires that a person be paid at least the federal minimum wage for the hours they have worked. The Wage-Hour Division of the federal Department of Labor enforces this law. However, if a person has received at least the minimum wage for the hours they worked, the federal Wage-Hour Division may not help.
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What Can My State Department of Labor Do For Me?
The law in many states requires that employers pay employees for all hours worked. Also, state law may require employers to pay employees at regular intervals, such as every two weeks or monthly. State laws may require that an employer who fails to comply with state wage-and-hour laws pay a penalty in addition to paying the full wages owed.
In some states, violations of state wage laws may even subject an employer to criminal prosecution. If federal law does not offer a person a solution, they should contact the department or agency in their state that enforces wage and hour laws. Usually, this is their state’s Department of Labor (DOL).
For example, in New York, the state DOL helps workers collect wages owed to workers who have not received the minimum wage. Workers who have not been paid what they are owed can file a claim with the New York DOL.
The New York DOL states that it collects from employers for workers for claims related to the following:
- Unpaid wages;
- Withheld wages;
- Illegal deductions.
The New York DOL also enforces rules that forbid employers from taking tips away from tipped employees, e.g., restaurant wait staff personnel. The New York DOL investigates and tries to collect claims for any unpaid wage supplement or benefits an employer may have promised to give a worker. An employer is guilty of a misdemeanor criminal defense if they do not provide employees the benefits and wage supplements that they have promised to provide.
Wage supplements include such items as:
- Holiday or vacation pay;
- Paid sick leave;
- Reimbursement of job-related expenses;
- Other items of this type.
Every employer must notify employees in writing or by publicly posting the employer’s policy on sick leave, vacation, personal leave, holidays, and work hours.
An employee who has not been paid their earned wages may file a complaint with their own state’s DOL. Most states have a DOL that helps workers recover any unpaid wages they have earned and are owed. In the complaint, the employee provides information about the non-payment.
This information may include the number of hours or days the employer did not pay wages, salary, or any other promised employment benefits. The information may also include when the wages or salary should have been paid.
When a state DOL receives a complaint from an employee, the department usually begins an investigation. An investigator may need the worker to provide more details about their claim. An investigation would also include an interview of the worker, the employer, or both.
When the state DOL finishes its investigation, the person who filed the claim is notified in writing of the DOL’s decision. If the decision favors the person, the DOL orders the employer to pay the withheld wages.
The state DOL may decide to deny a person’s claim. If the DOL denies a person’s claim, its written notice of denial will notify the person if they have the right to appeal and how to appeal the decision.
A person should read this notice carefully and note any deadlines for appealing or challenging the decision. It is important not to wait to file a claim with a state or federal DOL. It is also important not to miss any deadline for filing an appeal. A person can lose their case if they miss important deadlines.
The hearing officer or judge who decides an appeal may find the initial decision was wrong and order that the wages be paid, or they may find the initial decision was correct.
Once a person has filed any appeals that the state allows and is still unsuccessful, then the person can file a private lawsuit in a court of law. In a lawsuit, a person can claim that their case was incorrectly decided and that they are owed wages. If a court rules in the person’s favor, it can award the person the money they owe.
Can I File a Claim in State Court and Federal Court?
Failure to pay wages can be a violation of state law. Failure to pay wages may also violate the federal wage law, the FLSA, as noted above. In a lawsuit, a person can claim that their case was incorrectly decided and that they are owed wages.
If a court rules in the person’s favor, it can award the person the money they owe. If a person claims a violation of state law, they would probably file suit in a state court. If they claim a violation of federal law, they might file their suit in federal court.
Can I Be Punished at Work for Filing a Claim?
Federal and state laws prohibit an employer from taking any action that negatively affects an employee who files a claim for withheld wages. An action has a negative effect if it substantially reduces work duties, especially hours, pay, or employment benefits.
Firing, demotion to a less desirable position, suspensions, or a reduction in hours are all negative consequences/ An employer who makes these moves against an employee who has complained about non-payment of wages and salary may be liable for retaliation.
Do I Need the Help of a Lawyer for My Unpaid Wage or Salary Issue?
If you have not been paid for the hours you have worked or if you have been shorted in your pay, you do not have to accept it. You can talk to an employment lawyer. An experienced employment law attorney near you can advise you of your rights and what you can do to get the pay you are owed.
The lawyer can file required claims on your behalf with the right government agency that can provide you with a solution. The lawyer can also represent you at hearings and in court if that should become necessary.
