Can I Sue My Employer For Not Paying Me Correctly?

Bruh – boss ain’t paying you? Generally, yes you may sue an employer for not paying you correctly – but. Employees work hard and deserve to be paid correctly, and on time. It sucks when an employee works hard, and long hours only to be paid incorrectly while the boss is driving a Lambo or Benz. As an employment attorney, employees frequently ask me, “Can I sue my employer for not paying me correctly.” The answer has many shades of gray.

Brad Nakase, Attorney

Email  |  Tel (888) 600-8654

Can you sue a company for not paying you?

You work hard for your boss to make money, and you shouldn’t have to chase after the money you earned. In America, most workers depend on the biweekly paycheck to pay rent and care for their families. Living paycheck to paycheck and working hard as much as they can. It is unacceptable when an employer does not pay their worker. It is illegal for an employer to withhold their workers’ income. It is wage theft under both federal and state laws of employment. YES, you can sue a company for not paying you. In fact, many employees contact me learn that they are also owed money for missed rest break and lunch break breaks. Please call me; I got your back.

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Before pursuing a case in court for your employer not paying you correctly, it is important to know which type of case to approach first and what evidence you will need. For example, what type of wage theft did your employer commit? There are different types of wage violations and theft, such as; violations in terms of minimum wage and overtime pay, requiring workers to work off the clock, and record-keeping violations.

Violations In Terms of Minimum Wage & Overtime Pay

Workers have every right to sue employers if they fail to pay them the minimum wage that is mandated by federal law. There is minimum wage pay that has been set by the FLSA (Fair Labor Standards Act) and it must be paid to workers. And even though federal laws have mandated a certain minimum wage, some states have mandated an even higher minimum wage.

An employer can also fail to pay correctly by illegally deducting expenses from a worker’s paycheck when the law does not allow them to do so. Hence it is important to keep an eye on deducted money from your paycheck.

A worker can also sue their employer when they do not pay them overtime. An employer is not paying correctly if they deny their workers overtime pay as required by both state and federal laws. If an employee works more than 40 hours in a work week (7 days), federal and state laws require employers to pay overtime. When an employee makes overtime pay, it is one and a half times what they regularly get paid. A worker may be making $12 an hour, but if they work overtime, they’d be paid $18 an hour for every hour worked after working 40 hours.

It is important to note that some employees such as supervisors or managers get paid a salary instead of hourly pay. Because of this, these employees are not eligible to be paid for overtime work.

FLSA laws state that overtime pay cannot be waived by an employer nor an employee. Most of the time when an employer commits violations in overtime pay is for not classifying their worker’s job title correctly, for falsifying records in timekeeping and working locations, mistakes in calculations of working hours, and changing time clock records or undercounting hours that employees worked.

Employees can sue employers for requiring them to do work before they actually clock in or after they clock out for work. The employer would not only be not paying correctly, but they’d also be violating state and FLSA laws. If they are illegally forcing employees to work off the clock, they can also be liable if employees get injured while doing so. Employers could face both wage theft and personal injury claims against them.

Working off the clock can look like:

  • Employers requiring their employees to work through both their rest and lunch breaks.
  • Employers expecting their employees to do work or tasks at home.
  • Employers requiring employees to still answers to voicemails and emails before and/or after clocking in and out.
  • Employers not paying wages for their employees training.
  • Employers having workers do projects outside of work and only labeling it as volunteer work.

Violations in Record-Keeping

An employer can be sued for not paying correctly when their fail to organize and/or maintain time records (wages, working hours, compensations, etc..) accurately. The U.S. Department of Labor requires that all employers do this, and if employers deny their employees their deserving pay, they can face record-keeping violation claims.

WHD (Wage and Hour Division) posters from the U.S. Department of Labor are required to be put up in the workplace to inform employees of all the records that their employer is required to keep. Such records include the hours worked by employee, the total number of hours to be put in by employees per work week, and the hourly pay rate for employees.

How to report wage theft by employer?

When an employee files a wage claim against an employer, then they cannot be terminated by their employer for doing so. But before hiring an employment lawyer or filing a claim or getting the EEOC (Equal Employment Opportunity Commission) involved, it is important for the employee to first try and communicate with their employer regarding the issue. An employer might have miscalculated or made a mistake in their records which could be fixed.

But if an employer does not agree on a solution or even a settlement for the wage theft issue, then the employee should inform the federal agency EEOC regarding the issue by filing a claim. An employee would have a phone interview with an EEOC representative to have the right to file a claim with the EEOC. Contacting the WHD (Wage and Hour Division) with the U.S. Department of Labor is also an option.

When an employee sues employer for not paying correctly, then the judicial system allows employees/plaintiffs the right to seek monetary damages that can include interest pay, back pay, punitive and compensatory damages.

Interest/Liquidated Damages: Under state laws, an employee can sue their employer for not paying wages correctly, this goes as well for unpaid wages and the interests charged. Depending on the case, employees could also see liquidated damages instead of interest pay.

  • Back Pay Recovery: Employees have the right to recover every cent owed to them by their employer that was not paying correctly either by not paying overtime or by deducting from their paycheck. To try and recover back pay, employees must have proof that they worked a certain total amount of hours at a set pay rate.

  • Punitive Damages: Several states require that employers who are not paying correctly must face a penalty. Such penalty is that on top of paying for all other damages, that employers must also pay a financial penalty. For example, in California, employers must pay 30 days of an employee’s wages as a waiting time penalty.

  • Compensatory Damages: When an employer is not paying correctly, an employee experiences distress and faces difficult and stressful times. Therefore compensatory damages can be applied to cover the pain and suffering of the employee who was wronged by their employer.

What Can an Employee Do If An Employer Is Not Paying Correctly?

An employee can suspect that their employer is not paying correctly if their paycheck does not seem right. Employees cannot assume that their employer is always right when it comes to paying correctly, most employers end up underpaying their employees either by accident or on purpose. Employees could be getting paid less than the minimum wage or be cheated out of other wages or compensations.

Things to look out for include:

  • Ensuring your paycheck is correct. One must take a closer look at their paystubs and make sure it looks like the paystub required. 

  • Ensuring that your work hours are correct. Make sure that you are not only getting paid for all the hours included in your paystub, but that all the hours you worked are in fact on the paystub.

  • Ensuring the pay rate is correct. When an employer promises an employee an hourly rate, then it must be the one used to pay the employee. The pay rate promised must be at least $7.25 per hour, which is the federal minimum wage. It is also possible that the state you are in has a higher minimum wage requirement.

  • Ensuring overtime is compensated. According to federal laws, employers must pay their employees time and a half the regular rate for overtime hours. Overtime pay is required if employees work more than 40 hours in a workweek.

  • Ensuring that all deductions are correct. An employer is required to pay all state, federal, and local income taxes on their employees’ behalf, along with Medicare and social security taxes. These are deducted from the employees’ pay, but anything else cannot be deducted from their pay. Such as uniform or equipment charges.

Once an employee has determined that their paycheck/pay-stub is incorrect and that their employer is not paying correctly, there are steps they can take:

  • Report to Employer and/or Human Resources: An employee should report the mistakes and incorrect pay right away to their boss or to HR. An employer not paying correctly could be a mistake and an issue that could be easily fixed, and the unpaid wages could be paid for right away or on the next check.

  • Keep All Records: It is important for an employee to keep note of all the times in which they arrive and leave work, along with all their break times, travel between work sites, and any prep or clean up time. Keep note of the promised rate of pay and total hours worked in a workweek. An employee must keep records to prove if their employer is or is not paying correctly.

  • Discuss With Coworkers: If an employer is not paying an employee correctly, it is more likely that they are not the only worker being paid incorrectly. It can be helpful to figure out what other workers are being affected by this issue, and it would most likely get the employer’s attention and provide protection if action is taken as a group.

  • Discuss with Boss/Employer, or Human Resources: An employee should approach their employer either individually or in a group about them not paying correctly. They must insist on being paid what they are owed in wages.

  • Filing a Claim/Complaint: Employees must file a complaint with the Department of Labor’s Wage & Hour Division if their employer refuses to act or respond to their payment concerns. They must make a complaint concerning the wage theft and not being paid correctly their minimum wage or overtime.

  • Contact an Employment Lawyer: An employee has every right to sue employer for not paying correctly and violating state and federal laws on wage and hour. This can be done either individually or in a group of coworkers (class action). These lawsuits can be filed and made easier with the assistance of an employment attorney.

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At Will Employment

At will employment means that the employer or the worker may end the employment relationship at any time. When an employment is at will, the employer can terminate employees for no reason.

Can You Get Fired for Looking for Another Job?

Firing an employee for looking for another job is legal under California Labor Code § 2922. Employees in California are employed on an “at-will” which means the employee or employer can terminate the working relationship at any time for any reason.

Can an employee be terminated while on medical leave?

It depends on the reason the employee is on medical leave. Under the FMLA, an employee cannot be terminated simply because they take leave. An employee is free to take medical leave without fear of losing their job. However, if there is a reason unrelated to the medical leave, an employer does have the right to terminate an employee.

Can Slack Admins Read DMs?

Yes. Slack admin and employer can read every DMs, private channels, private messages sent between team members. Employers on either Slack's free tier or paid tier need to submit a request to Slack before they can access your private chats.

Four Hour Minimum Pay

Yes - under California employment law, when an employee is scheduled to work an eight-hour shift, and the work is canceled, the employer must pay a minimum of four hours.

How far back do PAGA claims go?

A PAGA claim is generally one year from the date of the last employment law violation on which the PAGA claim is based.

FICA Withholding: What is FICA tax on my paycheck?

What is FICA tax on my paycheck? FICA is a federal wage tax. FICA taxes requires withholding from an employee’s gross earnings: 6.2% for social security and 1.45% for Medicare. The employer matches these percentages for a total of 15.3%.

Why Does EDD Do a Benefit Audit?

The EDD conducts benefit audits to help pay Unemployment Insurance benefits to only eligible claimants only, prevents fraud in the UI program, and helps companies control UI costs. The EDD’s responsibility is to collect payroll taxes and conduct payroll audits of businesses.

What Does PAGA Mean in a Lawsuit?

The word PAGA is an acronym for the Private Attorney General Act, which is the Labor Code that authorizes employees to file a lawsuit to recover civil penalties for themselves and other employees. PAGA confers a private right of action to individuals to prosecute under PAGA and incentivizes the employee to keep 25% of collected civil penalties.

What does an employment lawyer do?

An employment lawyer help employers and employees understand their respective rights and obligations, such as wages, wrongful termination, overtime, PTO, disability, discrimination, harassment, etc.

Can my employer call my doctor?

Generally, yes, your employer can call your doctor; however, the questions your employer ask is limited and protected by HIPAA Privacy Law. Your employer has the right to contact your doctor to verify the authenticity of a doctor’s note but cannot ask about your medical condition or diagnosis.

Can I Be Fired for Work Restrictions?

State and federal laws protect employees from employers firing employees because of work restrictions. If you’re fired at work, please get in touch with our employment attorney for a free consultation on work restrictions ignored by the employer.

What Qualifies as an EEOC Complaint?

The EEOC is a federal agency that investigates workplace discrimination and harassment based on race, gender, ethnicity, national origin, age, religion, medical status, and disability. There are time limits for filing a complaint with the EEOC.

EEOC Complaint Process

Before filing an EEOC complaint, employees should understand the entire EEOC complaint process. This article answers many Frequently Asked Questions on the EEOC complaint process.

Do guys get paid paternity leave?

A father is eligible for paternity leave if three conditions are met: 1) welcome a new child within the first twelve months; 2) Paid into the State Disability Insurance; 3) Has not taken more than eight weeks of paternity leave in the past twelve months.

California PTO Payout Law

California law declares vacation time to be earned wages, and vacation time is accumulated as work is performed. So, an employee who has the right to ten days of vacation per year will after six months of work earn five days of vacation time.

Suing For Unpaid Wages California

It is totally unfair for an employee to work and not get paid; employees have bills and rent to pay. Employees suing for unpaid wages in California can get help from an employment attorney.

How Much Does It Cost To Hire a Lawyer To Sue My Employer?

People often ask me how much does an employment lawyer cost? Employees generally have claims against the employer, and an employment lawyer typically works on a contingent fee - meaning there is no fee unless the lawyer wins the employee's case.

Employee Management

Employee management is the process of aid employees to do their best work daily to achieve the company’s goal. Employee management helps improve employee satisfaction and productivity to help a company achieve its overall goals.

Is It Legal To Pay Employees Cash Under the Table?

Paying employees in cash is not illegal but frequently employers do not comply with employment laws concerning paying in cash. Employees' lawsuit against the employer for paying in cash has resulted in settlements averaging $100,000.

What is a demand letter?

A demand letter is a letter that is commonly written by a lawyer on behalf of a client setting forth facts supporting a demand for money. A demand letter is usually the first step in resolving a dispute between two opposing parties.

EEOC Discrimination

Learn about the various types of EEOC-prohibited discrimination. The EEOC protects employees from discrimination based on gender, race, ethnicity, gender, religion, national origin, age, disability, etc.

Standard PTO Policy for Small Business

A standard PTO for small businesses depends on the years an employee worked for the company. On average, the standard PTO for one to five years is ten days and six to ten years averages fifteen days.

Retaliation for Reporting Harassment at Work

An employer who punishes an employee who reported sexual harassment in the workplace violates state and federal law and is liable for retaliation. Examples of retaliation include demotion, fewer working hours, segregation, or termination.

Obscene and Sexual Gestures a Work

We're not talking about the ubiquitous middle finger that says fuck you. Obscene and sexual gestures at work may include two fingers in a V shape, with a tongue in between. 

Quid Pro Quo Sexual Harassment

One of the most common types of sexual harassment is Quid pro quo sexual harassment, and it is one of the easiest to hide. All types of workplace sexual harassment are illegal.

Reporting Time Pay

Wages are what we mean when we use the term "reporting time pay." If employers do not pay all of this at the moment of an employee being terminated, there may be waiting time penalties involved.

Can I Sue My Employer For Not Paying Me Correctly?

Employees work hard and deserve to be paid correctly, and on time. It sucks when an employee works hard, and long hours only to be paid incorrectly while the boss is driving a Lambo or Benz.
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