Employment Lawyer

Wage theft happens when an employer fails to timely pay employees the full and complete wages they are legally owed. It can take many forms, including unpaid overtime, illegal deductions, failure to pay minimum wage, and retention of tips. Here are some of the most common types:

Unpaid Overtime

• Employers refusing to pay time-and-a-half for hours worked over 40 in a week (under the Fair Labor Standards Act).
• Misclassifying employees as exempt from overtime when they should be eligible.
• Requiring employees to work off the clock to avoid paying overtime.

Minimum Wage Violations

• Paying below the federal or state minimum wage.
• Using tip credits improperly, resulting in tipped employees earning less than the minimum wage.
• Deducting costs like uniforms or equipment from wages, which causes the pay to drop below minimum wage.

Off-the-Clock Work

• Requiring employees to work before clocking in or after clocking out.
• Not paying for mandatory job-related activities like training, meetings, or setting up equipment.
• Forcing employees to work through legally required meal or rest breaks without compensation.

Misclassification of Employees

• Labeling employees as independent contractors to avoid paying wages, benefits, or overtime.
• Misclassifying salaried employees as exempt when they actually qualify for overtime pay.

Illegal Deductions from Pay

• Employers deducting wages for cash register shortages, broken equipment, or mistakes.
• Taking deductions that bring an employee’s pay below the legal minimum wage.

Theft of Tips and Underpayment of Tipped Workers

• Employers keeping some of workers’ tips or “tipping out” managers.
• Employers failing to compensate workers to a full minimum wage if tips don’t meet the minimum. 

Withholding Final Paychecks

• Employers failing to pay final wages after an employee quits or is terminated.
• Holding back unused vacation pay when state law requires it to be paid out.

Wage Payment Violations

• Paying employees late or inconsistently.
• Paying wages in a form that is hard to use, such as store credit instead of cash.
• Refusing to pay earned bonuses, commissions, or promised raises.

Yes, you can sue a company for not paying you—an act legally referred to as wage theft.

An employer that illegally takes wages from a worker should be held accountable under state and federal employment laws.

If you believe your employer misclassified you as exempt and denied you overtime pay, here’ what you can do:

1. Review Your Job Classification

Check if your job meets the Fair Labor Standards Act (FLSA) exemption criteria: 

• Salary Threshold: Do you earn at least $684 per week ($35,568 per year)?
• Job Duties: Do your duties fit the executive, administrative, or professional exemption?
• Salary Basis: Are you paid a fixed salary that does not vary regardless of days or hours worked (note: a day rate or hourly pay do not qualify as a salary regardless of amount)?

If you don’t meet these criteria, you are likely non-exempt and entitled to overtime pay.

2. Track Your Hours & Pay

Keep detailed records of:

• Hours worked per week (including overtime).
• Pay stubs and any communications about your classification.
• Job duties and responsibilities (in case your employer misclassified you based on job title alone).

3. Talk to Your Employer

Politely ask your HR department or manager to reassess your classification based on FLSA rules. If they refuse to correct it, you may need to escalate your claim.

4. Contact Morgan & Morgan

If your employer refuses to do the right thing, you can sue for back pay, liquidated damages (double unpaid wages), and legal fees. Morgan & Morgan can advise you on your legal options with a free case evaluation.

Wage and hour laws vary significantly across the United States, with different states implementing their own minimum wage requirements, overtime regulations, and exceptions. 

Here’s how these laws can differ:

Minimum Wage

The federal minimum wage is $7.25 per hour, but many states set higher rates.

For example, California’s minimum wage is $16.00 per hour (as of 2024), while Georgia follows the federal minimum at $7.25.

Some states, like Washington and Oregon, adjust wages annually for inflation.

Overtime Rules

Federal law requires overtime pay (1.5x regular pay) for hours worked over 40 in a week. Some states, like California, mandate daily overtime for hours worked beyond 8 per day.

Meal and Rest Breaks

Federal law does not require breaks, but many states do. California requires a 30-minute unpaid meal break for shifts over 5 hours and a 10-minute paid rest break for every 4 hours worked. Texas and Florida do not mandate rest or meal breaks.

Tipped Employees

Federal law allows employers to pay as little as $2.13 per hour if tips make up the difference to $7.25.

States like California and Washington require tipped employees to receive the full state minimum wage before tips.

Accurate Notice of Pay Rates of Pay and Paystubs

Employers have a legal obligation to provide employees with clear, itemized, and accurate information about their wages.

Failing to provide accurate pay rate notices or paystubs can result in legal action, including wage theft claims, penalties, and lawsuits. Some states have stricter laws governing this, such as California’s Labor Code Section 226 and New York’s Wage Theft Prevention Act (WTPA).

Final Paychecks and Wage Theft Protections

Some states require final paychecks immediately upon termination, while others allow a longer period.

States like New York and California have stricter penalties for wage theft compared to others.

Each state has its own labor department that enforces these laws, so workers should check their specific state regulations for exact protections.

Yes, day rate workers can qualify for overtime pay, but it depends on whether they are classified as exempt or non-exempt under the Fair Labor Standards Act (FLSA) and state laws.

Most day rate workers are non-exempt, meaning they must be paid overtime (1.5x their regular rate) for any hours worked over 40 per week. Just because a worker is paid a flat daily rate does not mean they are exempt from overtime. The key factor is whether they meet the FLSA’s salary basis test and job duties test for exempt status.

To determine a day rate worker’s overtime rate, follow these steps:

• Calculate the Regular Hourly Rate:
  • Divide the total weekly earnings by the total hours worked that week.
• Determine Overtime Pay:
  • Multiply the regular hourly rate by 1.5 for each overtime hour worked.

Example Calculation

• A worker earns $200 per day and works 6 days (total of 50 hours in a week).
• Weekly earnings = $200 × 6 = $1,200
• Regular hourly rate = $1,200 ÷ 50 hours = $24/hour
• Overtime rate = $24 × 1.5 = $36/hour
• Overtime pay for 10 extra hours = $36 × 10 = $360
• Total pay for the week = $1,200 + $360 = $1,560

Some employers misclassify day-rate workers as exempt to avoid paying overtime. If a worker is not properly classified, they may be able to file a wage and hour claim to recover unpaid overtime.

Yes, part-time employees are entitled to fair wages and overtime under the FLSA.

Yes. The FLSA protects all workers, regardless of immigration status, and most courts do not require you to disclose your immigration status if you bring a claim for unpaid wages.

Many employees believe that being labeled a "manager" means they are automatically exempt from overtime. However, exemptions depend on job duties and salary level, not just titles.

It depends on whether the manager is classified as exempt or non-exempt under the Fair Labor Standards Act (FLSA) and state laws. Here’s how it works:

Exempt Managers:

• Do not qualify for overtime pay.
• Must earn a salary of at least $684 per week ($35,568 per year) under federal law.
• Must primarily perform executive, administrative, or professional duties, such as supervising employees, making key business decisions, or managing operations.
• Example: A store manager who sets schedules, hires employees, and makes independent decisions may be exempt.

Non-Exempt Managers:

• Do qualify for overtime pay (1.5x their regular hourly rate for hours worked over 40 per week).
• This includes managers who perform a lot of non-managerial tasks (stocking shelves, working cash registers) and do not have significant decision-making authority.
• Example: A shift supervisor at a retail store who primarily does the same tasks as hourly employees but has minor leadership duties might be non-exempt.

State Laws & Higher Salary Thresholds

Some states have higher salary thresholds for exempt employees, meaning a manager may qualify for overtime under state law even if they are exempt under federal law. For example:

• California: To be exempt, managers must earn at least $66,560 per year ($1,280 per week) as of 2024.
• New York: In NYC, Long Island, and Westchester, the threshold is $1,200 per week ($62,400 annually).

When Managers Might Be Misclassified

Some employers misclassify managers as exempt to avoid paying overtime. If a manager spends most of their time doing non-managerial tasks and lacks real decision-making authority, they may be owed overtime pay.

No, overtime does not have to be pre-approved for an employee to be legally entitled to overtime pay. Under the Fair Labor Standards Act (FLSA) and most state laws:

• Employers must pay overtime for any hours worked over 40 per week (or over 8 hours per day in some states like California), even if the employer did not authorize or approve it in advance.
• Employers can discipline employees for working overtime without permission, but they cannot refuse to pay for the overtime hours worked.
• If an employer knows or should have known that an employee was working overtime, they must pay for it.

The answer is maybe. Salary alone is not determinative of whether you are eligible for overtime. It depends on the primary duties an employee performs, in addition to whether they are salaried.  If you are unsure about whether you are correctly classified, contact Morgan & Morgan for a free case evaluation today.

Exempt Employees: Not entitled to overtime pay.

• Must earn at least $684 per week ($35,568 per year) under federal law.
• Must perform executive, administrative, or professional duties (e.g., managers, accountants, doctors, lawyers).
• Many states set higher salary thresholds (e.g., $66,560 per year in California).

Non-Exempt Employees: Entitled to overtime pay.

• Some salaried employees can still get overtime if they earn less than $684 per week or do not meet the job duty requirements for exemption.
• Employers must calculate their regular hourly rate by dividing the salary by the number of hours worked.
• If they work over 40 hours in a week (or over 8 hours per day in some states), they must receive 1.5x their regular rate for overtime hours.

Yes, you can still pursue your claim even if you signed a waiver. The law recognizes that an employer may assert undue pressure on its employees and former employees and thus the FLSA prevents an employee from waiving their rights to overtime compensation, even if they sign a private agreement with their employer, unless the agreement is explicitly approved by a court or the Department of Labor.

Often, an employer can offer a sum of money that is well below the amount the employee is actually owed. Be aware that even if you sign such a waiver, your rights remain intact. 

To strengthen a claim, workers should:

• Record Hours Worked: Use a personal log, time-tracking apps, or save timesheets.
• Keep Pay Stubs: These show discrepancies between hours worked and wages received.
• Save Communications: Emails or messages about pay disputes can serve as evidence.
• Collect Witness Testimonies: Colleagues may verify work hours.
• File a Complaint Promptly: Reporting wage theft early can help prevent loss of owed wages.

Wage theft disproportionately affects low-income workers, leading to:

• Financial Hardship: Unpaid wages force workers into debt.
• Emotional Stress: Job insecurity and financial instability impact mental health.
• Reduced Retirement Savings: Lost wages affect long-term financial security.

Certain industries experience higher rates of wage violations, including:

• Hospitality: Tip theft and off-the-clock work.
• Retail: Unpaid overtime and misclassification.
• Construction: Cash payments below minimum wage.
• Healthcare: Overworked nurses and caregivers without proper pay.

The deadline for filing a wage and hour violation claim depends on whether the claim is filed under federal law (FLSA) or state law, as well as the specific violation.

Federal Deadline (FLSA - Fair Labor Standards Act)

• Standard deadline: 2 years from the date of the violation.
• Willful violations (if the employer knowingly broke the law): 3 years from the violation.

State-Specific Deadlines

Many states have longer statutes of limitations than the federal FLSA. Here are some examples:

• California: 3 years for unpaid wages (4 years if a breach of contract is involved).
• New York: 6 years for wage violations.
• Florida: 4 years (5 years if the employer acted willfully).
• Texas: 2 years (3 years for willful violations).

These laws are also subject to change, so it is in your best interest to act quickly and speak with an experienced labor attorney at Morgan & Morgan who can advise you on your state’s specific laws and assist you in filing your claim correctly and on time.

Federal law prohibits employer retaliation, which includes actions such as:

• Firing or Demotion: Illegally dismissing workers for filing claims.
• Harassment: Creating a hostile work environment.
• Reduction in Hours: Cutting shifts as punishment.

Although it is rare, some employees do face illegal retaliation. Employees facing retaliation can file a separate legal claim for damages.

Class actions require opt-in approval from affected workers, while collective actions automatically include employees unless they opt out.

To strengthen your unpaid wages claim, you should gather clear and detailed evidence that proves:

• How much you were supposed to be paid
• How many hours you actually worked
• The difference between what you earned and what you received

Key Evidence to Collect

Time Records & Work Schedules

• Timesheets or Clock-In/Out Records – If your employer uses a time-tracking system, request copies.
• Work Schedules – Compare scheduled shifts to actual hours worked.
• Emails, Messages, or Call Logs – If your employer texts or emails schedule changes, save these records.
• Security/Badge Swipe Logs – If applicable, these can show when you were at work.

Pay Stubs & Bank Statements

• Pay Stubs – Compare them to the hours worked and look for missing payments or incorrect rates.
• Direct Deposit Records – If paid via direct deposit, compare amounts received with what you were owed.
• Cash Payment Records – If paid in cash, any written receipts or documentation help.

Employer Policies & Contracts

• Employment Agreement – If you signed a contract, check for wage and overtime terms.
• Company Handbook – If there’s a policy on overtime, bonuses, or break pay, keep a copy.
• Emails or Written Agreements – Save emails confirming pay rates, bonuses, or promised overtime.

Witness Statements

• Coworker Testimonies – If others were also unpaid or saw you working off-the-clock, their statements help.
• Customer or Client Records – If you were working with customers, any proof of interactions during unpaid hours (like emails or receipts) can help.

Proof of Work Performed

• Task Logs or Work Reports – If you document your tasks, keep records of what was done during unpaid hours.
• Screenshots of Digital Work – If you worked remotely, timestamps from emails, messages, or file edits can help.

Proving that your employer willfully underpaid you requires gathering strong evidence that demonstrates a pattern of wage violations or deliberate misconduct rather than just an accidental, isolated payroll mistake. Evidence to prove willful underpayment can include:

Pay Records Showing Discrepancies

Pay stubs and bank statements can be compared to your agreed-upon wages and hours worked. Keep track of any payment delays or missing wages. If you earn performance-based pay, check if bonuses or commissions were properly included.

Timekeeping Manipulation

Compare your timesheets to your pay records to see if your hours match. If your employer edits your hours without reason, keep copies of the original records. Document any instances where you were required to work before clocking in or after clocking out.

Written or Recorded Evidence of Wage Violations

Save any emails, texts, or chat messages from supervisors about cutting hours, avoiding overtime pay, or delaying wages. If company policies contradict wage laws, they may indicate employer intent. Pay rate changes without notice can also be a sign of intentional underpayment.

Testimony From Coworkers

If other employees were also underpaid, their statements can strengthen your case. Past employee complaints or lawsuits against your employer may show a pattern of misconduct.

Proof of Employer’s Financial Ability to Pay

If the company has money but still underpays workers, this suggests deliberate wage theft. If executives are receiving full pay and bonuses while employees are not, it may indicate bad faith.

Yes, you may be able to recover wages for breaks you were required to work through in whole or in part (you were not completely relieved of your work duties), depending on federal and state labor laws.

When Break Time Must Be Paid

• Short Rest Breaks (Typically 5-20 Minutes): Under the Fair Labor Standards Act (FLSA), short rest breaks must be paid. If your employer required you to work during these breaks but did not compensate you, you may be entitled to back pay.
• Meal Breaks (Typically 30+ Minutes): Meal breaks do not have to be paid unless you were required to work during them. If you were expected to stay on duty, answer calls, respond to emails, or perform tasks, you may be owed wages for that time.

How to Recover Unpaid Break Wages

• Gather Evidence:
  • Work schedules, timecards, or punch-in/out records
  • Emails or messages showing you were required to work through breaks
  • Statements from coworkers confirming that break time was unpaid but still required for work
• Check State Laws:
  • Some states, like California, require meal and rest break penalties if an employer does not allow proper break time.
• Contact Morgan & Morgan:
  • If your employer refuses to pay or has a history of violations, we can help recover lost wages and possible penalties

Although requiring or permitting employees to work off the clock is illegal, workers frequently put extra hours in without getting paid overtime. You may not even realize that an employer is exploiting you. Staying back after your shift has ended to finish some tasks, answering emails after work, or engaging in any other work activities without getting paid can constitute working off the clock.

If you are required to work without receiving adequate pay, an employment attorney at Morgan & Morgan can help you understand your rights, determine your options, and potentially file a lawsuit for back pay and other damages.

At Morgan & Morgan, our team of experienced wage & hour attorneys has successfully represented countless clients in similar situations, securing millions in compensation. As the largest personal injury law firm in the country with over 1,000 lawyers nationwide, we have the resources, knowledge, and dedication to fight for your rights. 

We work on a contingency fee basis, meaning you won’t have to pay unless we win your case. Morgan & Morgan believes justice should be accessible to all, so our motto is the Fee Is Free™—you only pay if we win.

Contact Morgan & Morgan today for a free case evaluation to learn more about your legal options.

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