If you have not been paid for the work that you have done, you may be wondering what your options are. One thing you can certainly do is sue your employer for unpaid wages.
In this blog post, we will discuss everything you need to know about suing for unpaid wages.
We will cover topics such as what unpaid wages are, how to file a claim, and what to expect during the legal process.
We will also go over the issue of illegal immigrants and their rights to be paid for their work.
What Are Unpaid Wages?
Unpaid wages are any compensation due for the time you have worked, including unpaid overtime, vacation days, sick leave, holiday pay, and more.
These wages must be paid to you as per your employment contract or the agreement with your employer.
The most common unpaid wage violations for which employers can be sued are:
- Not paying minimum wage
- Not paying overtime wages
- Requiring employees to work off the clock (without pay)
- Failing to pay for all hours worked
- Misclassifying employees as unpaid interns
- Withholding wages or tips illegally
- Taking illegal payroll deductions
- Requiring employees to work without proper rest breaks
It is important to note that unpaid wage violations can also be considered theft. This means if you are successful in suing your employer for unpaid wages, they could face criminal charges as well as civil penalties.
1. Minimum wage violation
The Fair Labor Standards Act sets the minimum wage for all employees working in New York State. As of 2023, the minimum wage is $15 per hour for most businesses in New York..
An employer who violates this law can face serious penalties, including fines and possibly criminal charges.
2. Overtime pay wage violation
If an employee has worked more than forty hours per work week (i.e., within a seven consecutive day period), they are entitled to overtime pay as required by both federal and state laws. Overtime pay is calculated at one and a half times the employee’s regular pay rate.
So, if you make $15 per hour, you should be paid $22.50 for any hours worked beyond forty in that work week.
However, some employees may be exempt from overtime pay. This is usually the case for executive, administrative, or professional employees (EAP) who make a salary of at least $684 per week.
If your employer misclassifies you as exempt when you should be paid overtime wages, your employer can face serious penalties.
3. Working off the clock
This wage violation occurs when an employer requires employees to work unpaid hours, such as staying late to finish a project or coming in early to get ready for the day.
In some cases, employers will ask employees to do unpaid tasks during their lunch breaks or even after they go home for the day.
Employers are not allowed to require unpaid work from their employees unless the unpaid work is for a charitable organization or other volunteer efforts.
If your employer is asking you to perform work off the clock, you have every right to report them and sue them for unpaid wages.
4. Not paying all hours worked
Employers often try to avoid paying employees for hours worked by not keeping track of time or making it difficult for employees to submit accurate time sheets.
Employers are required to pay for all hours worked, no matter how small the task may be. If you believe your employer is not paying you for all hours worked, you have every right to report them and sue them for unpaid wages.
5. Misclassifying employees as unpaid interns or managers
Employers often try to avoid paying wages by misclassifying employees as unpaid interns or as managers. Interns are not considered employees and therefore do not have the same rights or protections as regular employees. Managers are not usually entitled to overtime compensation. However, certain specific requirements must be met before sometime can truly be considered a manager.
If you believe your employer has misclassified you as an unpaid intern or manager, you can report them and sue them for unpaid wages.
6. Withholding wages or tips illegally
Employers are not allowed to withhold wages or tips from employees, either by choice or because of a mistake. If you believe your employer has illegally withheld salaries or tips from you, you can report them and sue them for unpaid wages.
7. Taking illegal payroll deductions
Employers are not allowed to take illegal payroll deductions from their employee’s paychecks. This includes deductions for unpaid bills, taxes, or other expenses that should be the employer’s responsibility.
If you believe your employer is taking illegal payroll deductions from your paycheck, you can report them and sue them for unpaid wages.
8. Requiring employees to work without proper rest breaks
Employers are required to provide their employees with unpaid rest breaks of at least thirty minutes for every four hours worked.
If your employer is violating this law and requiring you to work without proper breaks, you can report them and sue them for unpaid wages.
How to report wage violations?
Your best option is to contact an employment lawyer to see what your options are. You can do this either on your own or as a class action (with a group of coworkers).
What happens once you decide to sue your employer for unpaid wages?
If you’re unable to resolve the unpaid wages issue with your employer, your next step is to talk with a professional employment lawyer and file a lawsuit in court for double the amount of your unpaid wages.
Having an attorney on your side is crucial since the laws can have various nuances and exemptions that you may not fully comprehend without the guidance of a professional.
The following is what you can expect from this legal process:
Once you hire an attorney to represent you, they will need to hear your full story and facts in greater detail.
They will need to know about your job duties, work schedule, policies maintained by the employer, and the amount of pay you’ve received so they can assess and decide how to pursue your case.
Bring all the evidence you’ve gathered that proves your employer willingly violated the FLSA and give it to your lawyer to evaluate.
Pre-suit demand letters
Pre-suit demand letters are one of the most common methods used by wage-and-hour attorneys to assist employees in reclaiming their wages.
This letter requests that your employer’s attorney explore a potential claim settlement with your attorney (before you file a lawsuit in claims court).
You must bring a claim in court to compel your employer to respond and prevent the statute of limitations from expiring.
You can pursue a claim for unpaid wages through a court lawsuit filed by your attorney.
Discovery and settlement
Once your claim has been filed, you will be a plaintiff in that litigation and will be required to adhere to particular court rules governing discovery, including keeping and (perhaps) producing documents to your employer.
In this phase of the lawsuit, both sides get to collect statements and evidence from the opposing side and their witnesses.
Typically, workers are required to show evidence of their employment (such as work schedules or pay stubs) as well as estimations and details regarding the earnings they claim to be owed.
The majority of lawsuits are resolved when the listed plaintiffs and their wage and hour attorneys negotiate a settlement amount.
Trial and collection
If you cannot reach a settlement, the case will go to trial.
At the trial, the judge and jury will be presented with the evidence and will hear the testimony of witnesses. The jury will then decide which side is telling the truth.
If you win the case, your employer is required to pay what you are owed and potentially other monetary damages, including interest, back pay, liquidated and statutory damages.
Can your employer retaliate if you decide to sue them?
If you are not fairly compensated for your labor, your employer is not permitted to punish or retaliate against you, as they are breaking the law.
Once you report a wage violation, your employer is prohibited from taking any form of retaliatory action against you. They cannot demote you, reduce your pay rate, cut the number of hours you work, or fire you.
If you are subjected to retaliation, you have legal recourse to file an additional claim, which could increase the amount of liquidated damages you receive.
Can Undocumented Immigrants Sue For Unpaid Wages?
Unfortunately, to this day, many undocumented immigrants are not paid for their work. They are often too scared to do anything but accept their bad luck.
However, the law protects all individuals, regardless of their immigration status.
Minimum Wage and Overtime
Undocumented workers have the right to be paid the minimum wage and must be compensated for their overtime work.
If minimum wage and overtime regulations did not apply to undocumented immigrants, businesses would be tempted to hire them and pay them subminimum wages rather than employing U.S. citizens for full compensation.
By making it clear that the FLSA applies to undocumented immigrants, the law discourages employers from hiring them at the expense of legal workers and law-abiding businesses in the United States.
Under the law, NYC employers are also forbidden from:
- Harassing or making fun of illegal workers because of their nationality, attire, religious belief, accent, or immigration status
- Punishing employees for speaking their own language
- Refusing to hire workers because of their nationality, attire, religious belief, or accent
- Threatening illegal workers about calling the police because of their immigration status
If a worker is treated badly or differently by an employer because of their nationality, religious beliefs, accent, or immigration status, they can report the employer to the following institutions:
- The NYC Commission on Human Rights
- The U.S. Equal Employment Opportunity Commission
- The New York State Division of Human Rights
- The U.S. Department of Housing and Urban Development
- State and federal court
However, they cannot file a complaint with one agency if they have already filed a discrimination complaint with another agency based on the same facts.
An employer cannot discriminate when:
- Deciding to hire or fire an illegal worker
- Deciding what to pay them
- Making other decisions related to work, like promotions or discipline
However, it is not illegal for an employer to refuse to hire a worker or fire them if they are not allowed to work in the United States.
Paid sick leave
If an employee works for more than 80 hours a year, they can earn up to 40 hours of safe and sick leave every year. They can use leave for themselves or care for a sick family member.
Safe and healthy workplace
Regardless of their immigrant status, every worker is entitled to a workplace free of health and safety hazards. They also have the right to get the necessary information and training about job hazards.
If an illegal worker is injured on the job, they are entitled to workers’ compensation benefits. These benefits may include medical care and lost wages.
How can undocumented immigrants report unpaid wages?
In order to report unpaid wages, an undocumented immigrant should contact an employment lawyer to file complaints in state or federal court. An attorney can provide professional advice and assistance on the best way to proceed with a claim.
To successfully sue for unpaid wages, an undocumented worker will need to prove that they worked and didn’t receive payment.
The evidence can include timesheets, pay stubs, emails, and other documents that prove unpaid hours.
Employers are required by law to provide records of payments they have made or failed to make, so the worker should ask them for these records if necessary.
Suing your employer is sometimes unavoidable, but unpaid wages are a serious problem that needs to be addressed.
By understanding your rights and how to properly approach the issue, you can make sure you recover unpaid wages from your employer.
Undocumented workers have the same rights as anyone else when it comes to unpaid wages, so if you’ve worked for an employer and haven’t been paid – don’t hesitate to take action.
To find out whether you have a 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 rights from beginning to end. We offer a free consultation to all of our prospective clients, so you have nothing to lose.