What if my employer doesn't pay me?
UPDATED: February 20, 2013
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Employers are required to pay at least minimum wage to employees. When an employee performs work, an employer must pay the employee the full amount of money owed, including both regular wages and overtime for hours worked in excess of 40 hours per week. Commissions, bonuses and all other amounts due must also be paid within a reasonable period of time. When an employer fails to pay as required, an employee can file a civil lawsuit or seek help from the government agency responsible for enforcing the rights of workers.
Requirements for Payment of Wages
Wage and hour and worker protection labor laws are set on a state-by-state basis. This means there may be some variation associated with the regulations depending on where an employee lives. In general, however, employers are expected to pay all that they promised. They must do so within a designated time frame depending upon the circumstances and they must not withhold any money from wages except in very limited circumstances.
In the state of California, for instance, Labor Code 200 makes clear that wages refer to all amounts earned for labor performed, regardless of whether the amount due is fixed or determined per piece or on a commission basis. Subsequent sections of the Labor Code mandates that an employee must receive unpaid wages owed at the time of discharge (section 201), be paid within 72 hours of giving notice or quitting (section 202), and other pay-related issues.
These labor code provisions, as well as similar ones in other states, essentially establish a rule that employees must always be paid what they are owed. If an employer fails to pay wages due, there are a number of options available to employees. One option is to file a civil lawsuit for nonpayment of wages. Another option is to seek help from the state's employment agency.
Wage Claims for Unpaid Wages
There are a variety of different state employment agencies that provide help to workers. For example, an individual in California who has not been paid wages due to him may file a claim for unpaid wages with the Division of Labor Standards Enforcement. The forms for filing a wage claim can be found on the Department's website. Other states have similar state agencies and options for filing a claim for unpaid wages.
Once the claim has been filed with the appropriate state agency, there is typically a procedure in place for investigating the claim and collecting wages for the employee. In California, for instance, once a claim has been filed, the employee will be notified within 30 days as to what action will be taken. There are three different responses to a claim for nonpayment of wages. A deputy labor commissioner assigned to the case can refer the dispute to a conference, refer the dispute to a hearing, or dismiss the claim.
In many cases, the dispute will be resolved between employer and employee before the scheduled conference or hearing. However, if this is not the case, then a notice will typically be sent to all involved parties letting them know when to attend a conference. At the conference, each party should bring evidence to support his position on the wage dispute. After the conference, if the issue is not resolved, then either a hearing will be scheduled or the claim dismissed.
The next step in the process - the hearing - is a formal legal proceeding at which each party presents evidence. Typically, all parties should be represented by an attorney at this hearing. A decision will be reached shortly after the hearing, and the employer and employee will be bound by the decision unless it is appealed to the federal appellate court. This means if an employee successfully proves he is owed wages, the employer will need to pay as directed by the government agency representing the worker, or will need to appeal to federal court. Although this procedure can differ from state to state, this is the general process if claims are pursued through the state agency providing support to employers.
Civil Lawsuit Against an Employer
A civil lawsuit, the other option available to employees, may be filed in the appropriate state court where the employer is located or where the employment relationship was based. In most states, if the employee prevails in proving nonpayment of wages in court, he or she is entitled both to back pay (payment of all unpaid wages, commissions, etc) as well as to payment of attorney's costs and fees. The judge or jury assigned to the case may also have discretion to award the employee up to three times the amount of actual wages due.
It is important to note, however, that a wage claim and a civil lawsuit for unpaid wages are options only for individuals who are classified as employees under the law. Independent contractors who are not paid money due to them will typically need to pursue a breach of contract claim as opposed to a wage and hour claim.