Federal wage claims: the US Department of Labor

The Fair Labor Standards Act (FLSA) is the federal law on minimum wage and overtime. The US Department of Labor’s Wage and Hour Division (WHD) enforces it in every state. If your state’s law gives you more, your employer must follow both.

The federal rules

• Minimum wage: $7.25 an hour, in effect since July 24, 2009. Many states require more (US DOL: Minimum wage).
• Tipped workers: the employer must pay at least $2.13 an hour in cash and may count up to $5.12 an hour of your tips (the “tip credit”). If your tips plus the cash wage don’t reach $7.25 in a workweek, the employer must make up the difference. Some states require a higher cash wage or don’t allow a tip credit (Fact Sheet #15).
• Overtime: at least 1.5 times your regular rate for hours over 40 in a workweek. The workweek is a fixed period of 168 hours (seven 24-hour days), and hours can’t be averaged over two or more weeks. Federal law has no daily overtime and no extra pay for weekends or holidays as such (Fact Sheet #23).
• A salary is not enough to deny overtime. Job titles do not decide who is exempt. To be exempt as an executive, administrative or professional employee, a worker must generally meet duties tests and be paid a salary of at least $684 a week (Fact Sheet #17A). A fixed salary for a week longer than 40 hours still owes overtime (Fact Sheet #23).
• Records: covered employers must keep accurate records of each non-exempt worker’s hours and pay (Fact Sheet #21).

What you can recover and the deadline

The Department of Labor or a worker can recover back wages plus an equal amount as liquidated damages where minimum wage or overtime was not paid. A worker who sues can also recover attorney’s fees and court costs. Generally you have 2 years to recover back wages and liquidated damages, or 3 years if the violation was willful (Handy Reference Guide to the FLSA).

How to file a complaint with the Wage and Hour Division

1. Gather information: your name, address and phone; the company’s name, location and phone; the manager’s or owner’s name; the type of work you did; how and when you were paid (for example cash or check, every Friday); and any pay stubs or your own records of hours (Information you need).
2. Call 1-866-487-9243 (1-866-4USWAGE). You will be directed to the nearest WHD office. For general questions you can also contact WHD online (WHD contact form).
3. The investigation: an investigator may hold a conference with the employer, interview workers in private, review the employer’s records and hold a final conference. If back wages are owed, the investigator asks the employer to pay them (How to file a complaint).

Complaints are confidential: WHD may not disclose your name, what the complaint is about or whether a complaint exists. Someone else can also contact WHD for you as a third party (Third-party complaints).

Immigration status

WHD says it helps all workers in the United States and enforces the law without regard to a worker’s immigration status (US DOL: Workers). Its services are free and confidential, whether you are documented or not (Information you need). The Department explains that the Supreme Court’s Hoffman Plastics decision does not stop it from recovering back pay for hours a worker has actually worked under the FLSA (Fact Sheet #48).

Retaliation

It is illegal to fire or punish a worker for filing a complaint or cooperating in an investigation (FLSA section 15(a)(3)). Oral and written complaints are protected, and most courts have ruled that complaints to the employer count too. The protection covers former employees as well. A worker can file a retaliation complaint with WHD or sue for remedies including getting the job back, lost wages and an equal amount as liquidated damages (Fact Sheet #77A).

Final paychecks

Federal law does not require employers to give former workers their final paycheck immediately, but some states do. If the regular payday for your last pay period has passed and you have not been paid, contact WHD or your state labor department (US DOL: Last Paycheck). See final paycheck laws by state.

Back wages WHD is holding for you

When WHD recovers wages but can’t find the worker, it holds the money for three years, then must send it to the US Treasury. Search for your employer and your name in the Workers Owed Wages tool (US DOL: Workers Owed Wages).

State or federal?

You can usually choose. State offices handle state rules such as a higher state minimum wage, daily overtime, final paychecks and illegal deductions; WHD handles the federal minimum wage and overtime. Find your state.