File an FLSA Complaint

The Fair Labor Standards Act (FLSA) is a U.S. federal law that covers wage and hour violations. You make a complaint about FLSA violations to the Department of Labor’s Wage and Hour Division (WHD). After you file your complaint, the agency can order your employer to pay you back wages. The agency may also sue your employer in court. States also have wage and hour regulations, which your employer may also be violating. Finally, you always have the option of bringing a lawsuit in court instead of filing an FLSA complaint.

Steps

Filing Your FLSA Complaint

  1. Identify your employer’s violation. The FLSA doesn’t apply to every employment violation. However, it generally covers wage and hour violations, including the following:[1]
    • Not being paid at least the federal minimum wage, which is $7.25 an hour.
    • Not getting at least the minimum wage if you are a tipped employee. Tipped employees must be paid at least $2.13 an hour. However, if your tips don’t bring you up to the minimum wage, then your employer must cover the difference.
    • Not being paid overtime pay. You must be paid at least 1.5 times your regular rate of pay for any hours worked over 40 in a workweek.
    • Working in hazardous jobs as a teen or working when too young.
    • Other. You can call the helpline at 1-866-487-9243 if you have questions about whether your employer is violating your rights.
  2. Gather information. Before reaching out to WHD, you should gather required information. This will speed up the reporting. For example, gather the following:[2]
    • your employer’s name
    • you employer’s location
    • employer’s phone number
    • names of the manager or owners
    • the type of work you performed
    • when you were paid (e.g., last day of the month)
    • how you were paid (e.g., by check)
    • copies of payment, such as pay stubs or checks
  3. Call with questions. You can reach the Wage and Hour Division toll-free at 1-866-487-9243. Their hours are Monday through Friday, 8:00 am to 5:00 pm in your time zone.[3] Your call is confidential, even if you are undocumented.[4]
  4. File a claim with a local office. You can file your complaint by visiting your nearest Wage and Hour District office. There are more than 200 offices around the country. Find the nearest office using this flyer: https://www.dol.gov/whd/WHD_district_offices.pdf.
    • A phone number is provided, so you can call to check their hours. If the office is too far away, ask how you can file.
    • Avoid delay. The FLSA has a deadline for reporting violations—two years for regular violations and three years for willful violations. The clock starts running from the date of the violation and ends when a federal lawsuit is filed.[5] Accordingly, you must give WHD enough time to investigate, so contact them as soon as possible.
  5. Provide additional information. After you file a complaint, WHD staff will investigate. They can access your employer’s payroll records. They may also question other employees. Employees are typically interviewed at the workplace. However, WHD can interview current and former employees at their homes or over the phone.[6]
    • Once the investigation is complete, WHD investigators will meet with your employer to discuss whether a violation has occurred. They will also discuss how to correct the error and pay you back wages.
    • You can check the status of your case by visiting the Department of Labor’s website here: https://dol.secure.force.com/DOLCaseStatusCheck. Enter your inquiry or case number along with your home zip code.

Reporting a Violation to Your State Agency

  1. Find your state agency. States sometimes provide greater protections to workers. For example, they might require overtime pay for any time worked over eight hours in one day. If your state provides more generous wage or hour laws, then you’ll want to complain to your state’s agency, which is usually your Department of Labor.
    • You can find your state agency at this website: http://www.workplacefairness.org/complaint-pay. Choose your state from the drop down menu.
    • You can read a summary of your state’s wage laws at this website. If you see that your state affords workers greater protection, then contact your state agency.
    • Don’t delay. States have deadlines for contacting them. For example, Iowa requires that you file a complaint within one year of the violation.[7] It’s best to contact them as soon as possible.
  2. File a complaint. Generally, you can call your state agency. Your state may also have a complaint form you can fill out. For example, states such as Arkansas and Illinois have complaint forms.[8] Once you finish filling out the form, you may have to provide a copy to your employer.[9] Generally, you will be asked to provide the following information to your state agency:
    • your name and contact information
    • your employer name and contact information
    • date of employment
    • type of violation (minimum wage, overtime, etc.)
    • how much you are owed
    • copies of your pay stubs, paychecks, W2 form, or other document
  3. Attend a hearing, if required. Your state’s agency may schedule a hearing to review the evidence. Alternately, your employer might simply pay up the money that is owed to you.
    • If the hearing board decides in your favor, the state can sue if your employer still refuses to pay.[10]

Filing a Lawsuit

  1. Check if the government agency is suing for you. The federal WHD may order your employer to pay you back wages. If your employer agrees, then you can’t sue. The Secretary of Labor may also sue your employer for back wages. If your employer intentionally violated the law, then the Secretary can sue for double the amount of back wages.[11]
    • If the Secretary sues on your behalf, then you can’t sue—unless the Secretary’s lawsuit doesn’t get you all the compensation you are entitled to.[12]
  2. Consult with a lawyer. You also have the choice of bringing a lawsuit on your own without filing an FLSA claim or filing a claim with your state agency. However, you should consult with a qualified labor or employment attorney who can advise you about your rights. You can find a qualified attorney by contacting your local or state bar association.
    • If you sue under the FLSA, you can also get attorneys’ fees and court costs.[13] This should make hiring a lawyer affordable. Many state laws also allow you to get attorneys’ fees and costs.
    • You should call up the lawyer and schedule a consultation. Prepare by gathering helpful information about your employer and the violation.
    • The lawyer can help you decide whether to sue under federal or state law.
  3. File a complaint in the correct court. You start a lawsuit by filing a “complaint.” This document explains the factual circumstances of the dispute. You also make a request for money compensation from the judge. Don’t delay filing your lawsuit. If you sue under the FLSA, you have two years to file your lawsuit from the date of the violation (three years if your employer’s conduct was willful).[14]
    • You will file the complaint in federal court if you are suing under the FLSA. You can find the appropriate federal court by using the court locator here: http://www.uscourts.gov/court-locator.
    • If you are suing under your state law, you should sue in state court. Your complaint must mention that your employer violated state law.
    • Your lawyer can help you draft a complaint and serve a copy on your employer.
  4. Continue with the lawsuit. Your lawyer will help you prepare for the lawsuit. You will probably have to testify at trial, and your lawyer can prepare you for that as well. Generally, a lawsuit has the following stages:
    • Your employer’s response. Unless they ignore your complaint, they should file a written response and send you a copy.
    • Discovery. During this phase of the lawsuit, each side requests information from each other. You may have to Testify in a Deposition as part of discovery.
    • Pretrial motions. If the evidence is clearly in your favor, you can win the lawsuit without going to trial.
    • Trial. At trial, each side will present witnesses. A jury or the judge will decide the case.

Tips

  • Your employer cannot retaliate against you for filing a complaint. If they do, you can sue for reinstatement or for lost wages.[15]

Warnings

  • You might work under an employment contract. Read it to see if there is a grievance or arbitration provision. If there is either, then you might have to pursue your complaint internally or through arbitration.[16] The courts are divided on this area of law, so consult with a lawyer about what steps to take.

References

  1. ↑ https://www.dol.gov/whd/regs/compliance/mwposter.htm
  2. ↑ https://www.dol.gov/whd/info.htm
  3. ↑ https://www.dol.gov/whd/contact_us.htm
  4. ↑ https://www.dol.gov/whd/flsa/WHD1498HowToFileAComplaint.pdf
  5. ↑ https://www.dol.gov/whd/faq_workers.htm
  6. ↑ https://www.dol.gov/whd/regs/compliance/whdfs44.htm
  7. ↑ http://www.workplacefairness.org/wage-hour-claim-IA
  8. ↑ http://www.workplacefairness.org/wage-hour-claim-AR
  9. ↑ https://www.illinois.gov/idol/forms/Documents/Wage%20Complaint%20English%20Form.pdf
  10. ↑ https://www.illinois.gov/idol/Documents/WPCAFlowDiagram.pdf
  11. ↑ http://www.workplacefairness.org/complaint-pay
  12. ↑ http://labor-employment-law.lawyers.com/wage-and-hour-law/employee-lawsuits-under-the-flsa.html
  13. ↑ http://www.workplacefairness.org/complaint-pay
  14. ↑ http://www.workplacefairness.org/complaint-pay
  15. ↑ https://www.dol.gov/whd/regs/compliance/whdfs44.htm
  16. ↑ http://labor-employment-law.lawyers.com/wage-and-hour-law/employee-lawsuits-under-the-flsa.html
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