Get Unpaid Wages

If your current or former employer owes you unpaid wages, there are several steps you can take to collect those wages. If you were not paid for all of the hours that you worked, or if your employer paid you less than your minimum wage or overtime rate, you can demand or sue for those wages. Begin by talking to your employer or sending a demand letter, then proceed to filing a complaint with the Department of Labor or taking your case to court.

Steps

Determining How Much You Are Owed

  1. Read your contract. Your employment contract should specify your salary or hourly wage. If your pay rate has changed since you signed your contract, look for documentation to verify that change, such as an email specifying your new pay rate, or pay stubs showing that your pay rate changed.
  2. Gather supporting documents. To demonstrate to your employer that you have been underpaid, and to ultimately bring a successful lawsuit, you will need to present evidence of how much you should have been paid, how much you were actually paid, and how much money you are owed. Gather your:
    • Time cards;
    • Pay stubs;
    • Bank statements (showing direct deposits);
    • Any communications with your employer regarding pay, such as an email confirming a raise; and
    • Your employment contract.
  3. Review federal wage laws. The federal minimum wage is $7.25 per hour as of 2015.[1] Your state or municipality can specify a greater minimum wage, but cannot impose a minimum wage lower than the federally-mandated minimum.[2] There are some exceptions to the federal minimum wage, including farm workers on small farms, employees at seasonal and recreational establishments, and executives or salaried administrative professionals.[3]
    • There are also federal rules (and exceptions) for overtime pay. Federal law specifies that your employer must pay you 1.5 times your regular pay for every hour you work in excess of 40 hours each week. You can find the exception to both the minimum wage and overtime laws at http://webapps.dol.gov/elaws/whd/flsa/screen75.asp.
  4. Consult your state and municipal laws. Your state or city may provide a greater minimum wage or overtime system. Your state’s laws can be found by visiting the Department of Labor’s website at http://www.dol.gov/whd/minwage/america.htm. If your state law provides for lower compensation than federal law, then the federal law applies.[4]
    • Some states, including California and Nevada, require overtime pay for hours worked in excess of 8 per day. California also requires double pay for each hour you work after you have already worked 12 hours in a single day.[5]
    • California also requires that you receive 1.5 times your hourly wage for the first 8 hours you work on the seventh day if you work seven days in a row.[6]
  5. Do the math. Calculate how much you are owed by multiplying each hour you worked by the applicable wage (minimum, overtime, or your contractual wage). Then subtract the amount you were actually paid from the amount you should have been paid to find the still-outstanding unpaid amount.
    • For example, say that you worked 8 hours on Monday through Thursday, and 10 hours on Friday. Your boss paid you for 42 hours, but paid you $6 per hour, or $252. Under federal law, you deserve $7.25 per hour for the first 40 hours, and time-and-a-half for the last two hours of overtime. $7.25 x 40 = $290. $7.25 x 1.5 x 2 = $21.75. Thus, you earned $290 plus $21.75, for a total of $311.75. Your boss already paid you $252. $311.75 minus $252 is $59.75. Your boss still owes you $59.75.
    • See Calculate Overtime Pay for more information on calculating your overtime pay.
    • Don't forget to include taxes and other deductions and contributions.
  6. Speak with your employer. Before threatening or filing a complaint, ask your employer for your unpaid wages. Your employer's failure to pay your full wages may have been the result of an accounting error or a misunderstanding. If so, your employer may be happy to voluntarily pay you the discrepancy. Call, set up a meeting, or send a friendly email or letter (as opposed to a demand letter). Try not to take an argumentative tone before your employer gives you a refusal.
    • For example, you might raise the issue in this way: "I was reviewing my records and I think there has been a mistake in the payroll department. I should have received $500 during the last pay period, but as you can see from this paystub, I was only paid $400. Would you please review this and have payroll correct the error?"

Drafting a Demand Letter

  1. Determine where to send your letter. A demand letter lets your employer know that if they do not respond, you will take legal action. When addressing your letter, send it to the person or department responsible for paying your wages. For example, if your supervisor is not responsible for paying employees, then address your letter to someone in management.
    • Demand letters can be very effective, because they demonstrate that the problem is not going to simply go away if the employer ignores it. You can also use the demand letter in court to show that your employer was made aware of the wage violation and that you tried to resolve the issue out of court.
    • A demand letter sent by an attorney may be more effective at getting the employer's attention. Consider hiring an attorney to draft a demand letter for you.
  2. Identify yourself. In your letter, identify yourself by name and your position at the company. If you no longer work for this employer, state the date upon which you stopped working.
  3. State how much money you are owed. Let your employer know approximately how much money you are claiming is still due to you. State the types of wages you are owed, whether they are minimum wage violations, overtime, or merely the amount specified in your employment contract.
  4. Set a deadline. Let your employer know that if they do not respond by a specified deadline, you will take legal action to claim the money you are owed. For example, "If I do not receive a response by Friday, October 30, 2015, I will take legal action to pursue my claim."
  5. Keep a copy. Be sure to keep a copy of the letter for your records. Send your letter via certified mail, return receipt requested, so that you have proof that the letter was delivered.
  6. Wait for a response. If your employer does not respond by the deadline you specified in the letter, consider calling to verify that they received the demand letter. Once you are satisfied that your employer does not intend to cooperate, you are ready to take legal action.

Filing a Complaint with the Government

  1. File a complaint with the Department of Labor. The Department of Labor (DOL) has the authority to investigate employers and recover unpaid wages on behalf of employees.[7] Filing a complaint is free and confidential, and you can file even if you are an undocumented worker.[8] To file a complaint with the DOL, call 1-866-487-9243 or contact your local DOL office. To find a local office, visit the DOL map at http://www.dol.gov/whd/america2.htm. When you file, you must provide:
    • Your contact information (name, address, and phone number);
    • Your employer's name;
    • The employer’s contact information (phone number and address);
    • Names of the managers or owners;
    • The type of work that you performed;
    • How and when you were paid (cash or check, every Friday or once a month, etc.); and
    • Any other evidence you have, such as pay stubs, records of your hours, and other information about the employer's payment practices.[9]
  2. File a complaint with your state's labor office. You may also file a complaint with your state's labor office if your employer violated your state's wage laws. To find your state's labor office, use the contact list created by the DOL, online at http://www.dol.gov/whd/contacts/state_of.htm.
    • The process for filing a complaint varies from state to state. However, many state agencies have pre-printed “fill in the blank” wage claim forms for you to complete. If those forms are not available on the agency's website, contact the agency at the phone number listed on the DOL's contact list.[10]
  3. Wait for the investigation to resolve. The state or federal agency will investigate your claim. Typically, the investigation begins when the agency mails a copy of the wage claim to the employer and requests a response.[11]
    • In some states, the investigator will make a preliminary decision about the claim. This decision will become final unless the losing party appeals within the appeals deadline. In Texas, for example, the party has 21 days to object.[12]
  4. Participate in a settlement discussion. You may also be invited by the agency to discuss settling with your employer. In California, for example, you would receive a notice from the labor commissioner with the date and time of a settlement conference. At the conference, you will have the opportunity to discuss your claim and try to settle the matter with your employer.[13]
    • Bring copies of any documents that support your position, unless you already submitted those documents to the agency when you filed your claim.[14]
  5. Attend a hearing. If the agency determines that your claim has merit, but your employer will not settle, the agency will schedule a hearing. Both sides will be present evidence to a presiding judge or officer, who may ask questions to clarify the issues.[15]
    • Some states conduct these hearings by phone.[16]
    • Before the hearing, practice explaining the timeline of events, including when you were hired, what dates or periods you were not adequately paid, when you stopped working for that employer, and what steps you took to try to resolve the problem before filing the complaint with the state or federal agency.
    • Bring copies of your paystubs, time cards, letters, emails, and other documents. Organize them in binders for quick reference during the hearing.
  6. Wait for a decision. The administrative law judge who hears the case will make a decision, which will be mailed to you.[17] If you lose, then you may have the right to file an appeal. The letter containing the judge's decision should include instructions on how to appeal the decision. If you still have questions about the appeals process, contact the agency that investigated your claim.

Filing a Civil Case

  1. Verify that you can file a civil suit. Some states allow employees to choose between filing a civil suit in court or filing a complaint with the state’s labor department. Other states require that you file a wage complaint with a state agency and then request a “right to sue” letter.[18] To find out whether you need a right to sue letter, call your state's labor agency at the number listed at http://www.dol.gov/whd/contacts/state_of.htm.
  2. Meet with an attorney. An employment law attorney can advise you on the merits of your case, and can represent you in court. See Find an Employment Lawyer for more information about hiring an employment lawyer.
    • Some attorneys offer consultations either for free or for a reduced fee. Call ahead to inquire about the office's consultation policy.
    • Note that your employer may be ordered to pay your attorney's fees if you win.[19]
  3. Consider small claims court. Depending on the amount of money you are owed and the court rules in your jurisdiction, you may have the choice of filing in small claims court instead of regular civil court. Small claims court is used for disputes valued at a maximum of a few thousand dollars, and uses simplified rules of evidence to make it easier for parties to represent themselves. Some states do not even permit attorneys to represent clients in small claims. It may be more cost-effective for you to represent yourself in small claims court.
  4. Draft a complaint. A lawsuit begins when the you, the plaintiff, file a complaint against your employer, the defendant. In the complaint, you explain the facts of your situation and request relief from the court. Many courts provide pre-printed complaint forms.[20]
    • You may also need to complete a summons form and other court-specific documents. Ask the court clerk what other forms you need to include with your complaint.
    • If your court does not have pre-printed complaint forms ask the court clerk for information on how to draft a complaint yourself, or consult an attorney.
  5. File your documents. Make several copies of your forms and take the copies and original to the court clerk. The clerk will assist you in filing your case and stamping your copies as "filed." You will also be required to pay a filing fee, which varies from state to state. If you cannot afford the filing fee, ask the clerk for information about how to file a request for a fee waiver.
  6. Serve the defendant. Service is the process by which you notify your employer that you have sued them. Some courts permit service by mail, but generally you must arrange to have the defendant "personally served" (where the documents are handed to the defendant) by:
    • A professional process server;
    • The sheriff's office; or
    • Someone over 18 years old and not involved in the case.
  7. File a proof of service. Your court should have pre-printed "Proof of Service" or "Affidavit of Service" forms. The person who served the defendant must complete and sign the form, verifying that he or she served the defendant. Take the completed form to the court clerk for filing.[21]
  8. Wait for an answer. Your employer will have a deadline to file an answer to your complaint, typically 21 or 30 days. In the answer, your employer will admit or deny your allegations, and may assert legal defenses or justifications for not paying you. After the defendant files an answer, the court will schedule a hearing or trial.
    • Your employer also has the option of simply paying you to settle the case. If you are paid the money that you are owed, then you can ask the court clerk how to dismiss your lawsuit, which will require filing additional paperwork.
    • If your employer does not respond to the complaint, ask the clerk what forms you need to submit in order to request a default judgment.
  9. Attend the trial. At the trial, each side will present evidence in support of their claims. The typical components of a trial include:
    • An opening statement. The plaintiff (or your attorney) will deliver a short opening statement, which summarizes the evidence the plaintiff will present. The defendant will also make an opening statement.
    • Witness testimony. Both sides will call witnesses to testify and discuss evidence. You will present your witnesses first, including your own testimony. Explain how much you are owed, how you calculated that amount, and why you believe your employer refuses to pay you.
      • If you have an attorney, the attorney will ask you questions to guide you through your testimony.
      • You can also bring other witnesses, such as coworkers who have knowledge of the dispute.
    • Cross-examination. Both sides can question the other's witnesses. Keep your answers short and truthful. Do not be afraid to admit that you do not know an answer.[22]
    • Closing argument. Both sides will get to summarize the information presented at trial.
  10. Collect on your judgment. If you win, the judge will issue a judgment in your favor stating that the defendant owes you money. Hopefully, the defendant will voluntarily comply with the order, but collecting on a judgment can be difficult. It may be more effective to hire an attorney than to try to collect yourself.
    • When collecting on a judgment owed by a business, you can ask the court to authorize the garnishment of or placement of a lien upon the business's bank account. You may also get authorization for the sheriff to seize money from the register or other valuable property from the premises that can be sold to satisfy the debt.[23]
    • Ask the court clerk what forms you must file to request a garnishment, lien, or authorization for the seizure of the defendant's property.

Tips

  • Don’t wait to pursue lost wages. Deadlines to file a case tend to run for two or three years.[24] However, the longer you wait, the more likely it becomes that necessary evidence and records will be lost.
  • This article is intended as legal information and does not provide legal advice. If you need legal advice, contact a licensed attorney.

References

  1. Jump up ↑ http://www.dol.gov/whd/minimumwage.htm
  2. Jump up ↑ http://www.dol.gov/whd/minwage/america.htm
  3. Jump up ↑ http://webapps.dol.gov/elaws/whd/flsa/screen75.asp
  4. Jump up ↑ http://www.dol.gov/whd/minwage/america.htm
  5. Jump up ↑ http://www.dol.gov/whd/minwage/america.htm
  6. Jump up ↑ http://www.dol.gov/whd/minwage/america.htm
  7. Jump up ↑ http://www.dol.gov/whd/regs/compliance/whdfs44.htm
  8. Jump up ↑ http://www.dol.gov/whd/flsa/WHD1498HowToFileAComplaint.pdf
  9. Jump up ↑ http://www.dol.gov/whd/flsa/WHD1498HowToFileAComplaint.pdf
  10. Jump up ↑ http://www.dol.gov/whd/contacts/state_of.htm
  11. Jump up ↑ http://www.twc.state.tx.us/news/efte/wage_claims_in_texas.html
  12. Jump up ↑ http://www.twc.state.tx.us/news/efte/wage_claims_in_texas.html
  13. Jump up ↑ http://www.dir.ca.gov/dlse/Forms/Wage/IEnglish.pdf
  14. Jump up ↑ http://www.dir.ca.gov/dlse/Forms/Wage/IEnglish.pdf
  15. Jump up ↑ http://www.twc.state.tx.us/news/efte/wage_claims_in_texas.html
  16. Jump up ↑ http://www.twc.state.tx.us/news/efte/wage_claims_in_texas.html
  17. Jump up ↑ http://www.twc.state.tx.us/news/efte/wage_claims_in_texas.html
  18. Jump up ↑ http://www.mass.gov/ago/doing-business-in-massachusetts/labor-laws-and-public-construction/wage-and-hour/private-right-to-sue.html
  19. Jump up ↑ https://www.workplacefairness.org/complaint-pay
  20. Jump up ↑ http://www.sdcourt.ca.gov/pls/portal/docs/PAGE/SDCOURT/GENERALINFORMATION/FORMS/SMALLCLAIMSFORMS/SC100.PDF
  21. Jump up ↑ http://www.courts.ca.gov/selfhelp-serving.htm
  22. Jump up ↑ http://www.nolo.com/legal-encyclopedia/free-books/beat-ticket-book/chapter10-6.html
  23. Jump up ↑ http://litigation.findlaw.com/filing-a-lawsuit/after-a-judgment-collecting-money.html
  24. Jump up ↑ http://www.dol.gov/dol/topic/wages/backpay.htm
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