Every employee is entitled to fair compensation for the work they do. Unfortunately, this is often not the case. Still, there are remedies in place that can help employees get the back pay they are owed.
Just in 2021, the Department of Labor has recovered more than $230 million in back pay from employers who have violated labor laws by owing workers wages.
If you’ve been wrongfully terminated or denied back pay, you may wonder how to get it back.
In this article, we’ll discuss how you can claim back pay from your employer.
Who enforces employees’ rights to back pay?
The Wage and Hour Division of the U.S. Department of Labor is responsible for enforcing the Fair Labor Standards Act (FLSA).
It codifies and enacts labor practices governing minimum wage, overtime compensation, child labor, and other issues. It also grants the Department of Labor the authority to enforce the FLSA in terms of recovering back pay, including unpaid wages or overtime.
Other laws, such as the Davis-Bacon Act (DBA) and the Service Contract Act (SCA), have their own requirements relating to minimum wage and back pay for contract workers receiving federal funding.
The Wage and Hour Division of the Department of Labor is responsible for enforcing the Fair Labor Standards Act, the Davis-Bacon Act, and the Service Contract Act.
Employees who are victims of pay infractions have a number of available remedies.
An employee or a former employee can file a civil suit. They can also formally complain to the Department of Labor and ask for an investigation.
If the Wages and Labor Division concludes that an employer has violated the Fair Labor Standards Act, they may be required to pay restitution.
How can you recover back pay?
There are a number of options for recovering unpaid wages.
Although an employee has the right to file a civil suit independently, the Fair Labor Standards Act gives the U.S. Department of Labor the authority to act on their behalf and collect their lost wages.
If the Department of Labor’s Wages and Hours Division concludes that an employer owes an employee back pay but refuses to pay, the Secretary of Labor can bring a lawsuit to force them to pay.
If an employee is found to be in the right, they are entitled to back pay plus liquidated damages in the amount equal to their lost wages. Liquidated damages are additional compensation paid to an employee.
If, for instance, an employee wins a case against their employer and is awarded $1,000 in back pay, an employer may also be forced to pay them an additional $1,000 in liquidated damages.
Employees can also file a separate civil lawsuit against the employer, which can include back pay owed, court costs, and attorney fees. Benefits can also be included at the request of the employee’s attorney.
Although an employee is entitled to bring a lawsuit against the employer, they cannot do so if they have already received a judgment or compensation under the supervision of the Wage and Hours Division. They also cannot do it if the Secretary of Labor has done so already.
Depending on the employer’s intent, the statute of limitations for filing a claim for back pay or unpaid overtime is either two or three years.
If the owed back pay was not intentionally withheld, the statute of limitations is two years. The statute of limitations is three years if the money owed was withheld willfully, that is, overtly or intentionally.
The Wage and Hours Division’s investigation: how it works
The WHD breaks down its investigation into two main parts. Although the DOL sometimes conducts its own investigations into employers or groups concerning back pay, it is the employee who initiates the claim in most cases.
They are required to give the WHD relevant information about their employer and themselves. This information must include the names of all parties, their work titles, an employee’s address, contact information (phone, email, etc.), as well as that of the employer.
An employee will also have to present supporting documentation. These documents can be time sheets, pay stubs, logs of hours worked, tax returns, and more.
It’s good to note that all this information, as well as an employee’s identity, is confidential.
The Department of Labor will not disclose an employee’s identity unless they permit them to do so and only when it is required to investigate the complaint.
The employer is not allowed to fire or discriminate against an employee because of a claim they brought against the employer.
In the second part of the investigation, WHD will meet with the employer to assess whether any legal exemptions apply to the company or the employee. Additionally, they will require payroll records, time cards, and any information deemed relevant to the investigation.
A one-on-one interview with employees will follow this to check and determine the validity of any records. While discussions are normally conducted at the place of work, a claimant may request an alternative location.
This can take place anywhere from the employee’s home to a mail-in interview in which the employee receives written questions and is expected to respond via mail.
Determining the entitlement to back pay
After the Wage and Hours Division has collected and compiled all relevant information, it will determine whether the employer deliberately withheld wages from the employee.
If WHD concludes that the employer owes past wages, the company will be required to pay the employee in full and will be monitored to ensure compliance.
Suppose the unpaid wages resulted from a termination that was judged discriminatory or otherwise unlawful. In that case, the employer might be forced to rehire the employee or provide some other form of relief.
Willful and non-willful infractions are evaluated differently by the Fair Labor Standards Act. In either scenario, penalties may be assessed in addition to a favorable decision for the employee.
Infractions of wage laws are subject to civil penalties of up to $1000, while intentional violations are subject to fines of up to $10,000. Willful violations of the FLSA can result in criminal prosecution, and multiple convictions can lead to incarceration.
Back Pay and Social Security Disability: what you should know
Past Due Social Security Disability Benefits are yet another type of back pay that may be owed to an employee. Instead of money owed by an employer, it is money owed by the Social Security Administration based on the date an employee first applied for benefits and the day those benefits are approved.
If an employee is granted Social Security Disability (SSD), their benefits can be retroactive, but they will not extend back to the date the application was initially filed. There is a five-month waiting period before receiving SSD benefits. Employees who have waited more than a few months may be entitled to past-due benefits.
If the total is less than a few thousand dollars, it will be paid in a lump payment when the employee starts receiving benefits. If it is a larger sum, it may be divided into three installments. In some cases, it can take several months or up to two years to collect benefits.
Another type of Social Security benefit is Supplemental Security Income (SSI). Starting one month after filing a claim, these benefits are eligible for past-due benefits or back pay.
Unlike SSD benefits, SSI benefits are intended for low-income beneficiaries with little or no employment history. Supplemental Security Income solely considers an employee’s income and savings, not their employment history.
What to do if the WHD cannot help you?
In case the Wage and Hours Division cannot help an employee receive back pay, there are other options. The employee can file a lawsuit directly in court or go to their state’s labor department.
The state labor department is likely to have similar procedures to the WHD. They will investigate the claim and may order the employer to provide back pay if they find that the employee is owed wages.
Filing a lawsuit may be the only option if the state labor department is unable to help the employee. The employee will have to prove that the employer owes them back pay and may have to pay court fees.
If the employee wins their case, the court can order the employer to provide back pay and may also order them to pay the employee’s legal fees.
Collecting back pay can be a long and challenging process, but it is important to know that options are available to employees who are owed wages.
By understanding the procedures of the Department of Labor and state labor departments or by filing a lawsuit, employees can ensure that they receive the back pay they are entitled to.
To find out whether you have a back pay case worth pursuing, feel free to contact Cilenti & Cooper today. We treat every case with the attention and care it deserves and can fight for your civil rights from beginning to end. We offer a free consultation to all of our prospective clients, so you have nothing to lose.