Enforcement of Wage and Hour Laws
The Fair Labor Standards Act (FLSA) is the federal law that requires minimum wage and overtime payment to covered employees. Employees who are covered by the minimum wage and overtime laws are called "non-exempt" employees. Those who are not covered by minimum wage and overtime laws are "exempt" employees. Many disputes under the FLSA concern whether an employee is exempt or non-exempt.
Many professional, administrative or managerial employees will qualify as exempt employees. However, you should not assume that because you are paid a salary, or given the title of "supervisor" or manager," you are automatically exempt. Your actual job duties, not your title or job description, will determine whether you are exempt. The Wage & Hour Division has issued detailed regulations concerning what type of work is exempt.
If you believe your employer or former employer has not complied with the Fair Labor Standards Act, you have two options. One option is to file a complaint with the Wage & Hour Division of the Department of Labor ("Wage & Hour"), the federal agency in charge of enforcing the minimum wage and overtime laws. The other option is to go to a private attorney and file suit directly in court. Both options are discussed below.
Wage & Hour
If you file a complaint with Wage & Hour, it will be investigated by one of the agency's investigative officers. However, the investigation may not begin immediately because Wage & Hour usually schedules investigations based on the seriousness of the allegations. Top priority goes to complaints of violations affecting employees' safety or welfare. Other factors considered in deciding priority of complaints are the seriousness of the violations, the extent of the violations (how many employees are affected, for example), and the resources required for the investigation.
Once the investigation begins, the investigator will interview employees, members of management, and review the employer's records. The investigation may last several weeks or several months depending on the complexity of the case and the case load of the regional office which is investigating the complaint.
At the conclusion of the investigation, if the Wage & Hour office believes the law has been violated, it will try to convince the employer to voluntarily comply with the law in the future and pay to employees any backpay due to them (generally for up to two years). If Wage & Hour cannot reach a settlement with the employer, it may choose to file suit in court to recover backpay and interest for the employees who have been affected by the unlawful payment practices.
During the course of an investigation, Wage & Hour will keep confidential your identity as well as any other non-management witnesses it interviews during the investigation. However, if the agency files suit and the case proceeds to trial, confidentiality can no longer be assured.
Private Attorney
Instead of going through the Wage & Hour division, you may choose to hire your own attorney and file suit against your employer or former employer directly in court. This process may be quicker because you will not have to wait for the government to complete an investigation before going to court. Once in court, you can seek any unpaid minimum wages or overtime, plus interest, and "liquidated" damages in an amount equal to the unpaid wages (this is sometimes called "double damages"). In addition, you can recover your attorney's fees from the employer if you prevail. This means the employer, not you, will have to pay your attorney.
Waiver of Rights
You may not waive your rights to wage payments which are required by law. As a result, an employee who has a verbal or written agreement with his employer agreeing to accept less than the required minimum wage and overtime pay is not prevented from later pursuing a claim for those wages.
Class Actions
In some cases a large number of employees are owed back wages due to an employer's pattern of non-compliance with the law. In such cases a "class-action' lawsuit may be filed. In other words, an employee may bring suit for himself and on behalf of others "similarly situated" to recover backpay and damages. Only employees who voluntarily "opt in" to the lawsuit can be part of the case.
Anti-Retaliation Provisions
The FLSA prohibits an employer from discharging or otherwise discriminating against employees who have filed a formal Wage & Hour complaint. At least one court has held that an employer unlawfully retaliated against a former employee by causing a prospective future employer not to hire him.
To be covered by the anti-retaliation provisions, an employee must either file or threaten to file an action against the employer, actively help other employees in asserting their FLSA rights, or engage in other activities that could be perceived as directed towards the assertion of rights under the Wage & Hour laws. Informal complaints to an employer about lack of overtime compensation may not be sufficient to trigger the anti-retaliation provisions, although courts have reached different conclusions on this issue.
Statute of Limitations
Lawsuits to enforce FLSA provisions are covered by the same statute of limitations whether they are brought by the Wage & Hour or by a private attorney. In either case, the statute of limitations is generally two years. That means any lawsuit must be filed within two years after the cause of action arose. However, if the violations are found to be "willful," the statute of limitations is three years. This means that an employee who is still working for an employer when suit is filed, and whose employer is still engaging in a violation of the law, can recover backpay and interest for either two or three years, depending on whether the violation is found to be willful.
© 1999 John C. Gilliland II
The content of this article was last reviewed and updated as necessary on 4/21/05.
Disclaimer: This article is for educational and informational purposes only, is not intended for legal advice, and should not be used for legal guidance or to resolve legal problems. Transmission or receipt of this article does not create an attorney-client relationship. Anyone reading this article should not act on the information in the article without seeking professional legal advice applicable to his or her own specific circumstances.
