Most workers get paid what they expect to get paid. If on an hourly wage, this means being paid for the right number of hours at the right hourly wage plus overtime if worked.
If you notice that your paycheck isn’t correct, or you haven’t been paid at all, you will need to check that it is just an administrative mistake and not a deliberate attempt to underpay you.
Underpayment of an employee’s agreed wage could be considered wage theft, which is a violation of the federal Fair Labor Standards Act (FLSA).
If there is proof of wage theft by your employer, you may be able to claim back pay through the Wages and Hours Division of the Department of Labor (DoL) or a civil claim with the help of an employment lawyer.
What is Back Pay?
Back pay is the payment of any wages that you should have been entitled to but weren’t paid. This could be due to:
- incorrect number of hours paid;
- incorrect hourly wage paid;
- failure to pay any wages;
- failure to pay for travel time related to the job;
- failure to pay overtime at the correct rate;
- unjustified or illegal deductions from a paycheck.
You will need evidence that you haven’t been paid correctly before you see your own HR department or whoever makes up your wages.
If you suspect that you aren’t being paid properly, the sooner you enquire about it the better as it can be harder to rectify the longer it has gone on.
Before you start making any enquiries read through your employment agreement carefully first if you have one. This should set out what you should get for your work and the pay rate.
Your employer may be justified in making some deductions, e.g. for uniforms or meals provided at work, but not if the deductions mean you are not being paid at least the minimum wage.
The other thing you should do is to hold on to all your paycheck stubs as evidence of what you were paid and also make a note of how many hours you work each week, including any overtime and time spent traveling on work business.
How Much Can You Receive in Back Pay?
Calculation of back pay may be relatively simple or more complicated. It depends on whether the wage theft was a one-off discrepancy, or a failure to pay the correct amount of wages over an extended period.
To take a simple example, say you have worked 45 hours on a regular basis for 2 months on an hourly wage of $12 / hour, but were not paid at the overtime rate for the number of hours of overtime you have worked.
This is calculated at one and a half times the normal hourly wage, i.e. $18 / hour for 5 hours for each week you worked overtime.
Your employer must pay you at the overtime rate if you work for more than 40 hours in any 7 day period. In this example, if your employer didn’t pay you for the overtime you worked for 8 weeks at 5 hours overtime each week, then the back pay you are due would be $6 x 5 x 8 = $240.
How much you actually receive if you file a claim for back pay or the DoL does that on your behalf, depends on the evidence you have available to show that you have been underpaid.
If there has been a deliberate attempt by your employer to under pay you, then the DoL may demand that your employer not only pays back pay, but an equal amount to the total back pay calculated in addition, known as liquidated damages.
Help Recovering Your Back Pay
If you have been underpaid, your first step would be to take the matter to your HR department or whoever pays you and discuss the discrepancy.
There may be a simple explanation for the underpayment and if this is the case, you should get the difference, i.e. the back pay in a forthcoming paycheck.
If you get nowhere with your employer, the next step would be to take the complaint to the Wages & Hours Division at your nearest Department of Labor. They should investigate the claim and may be able to resolve it.
If this is unsuccessful, or the DoL suggests you file a claim through the civil court you will need an employment lawyer to help you prepare the claim. For a free case evaluation use the form available below.
