State and federal laws require that workers be paid on time and in full, and there are several avenues that employees can pursue to recover money they are owed. This includes late or “light” paychecks, unpaid commissions, or unpaid or underpaid overtime wages, which may be due to willful or negligent acts of the employer or due to employees being misclassified as independent contractors. Common violations I see in practice include:
- Employer incorrectly tells employees they do not qualify for overtime,
- Employer illegally pays employees in cash at regular-time rates for overtime work, instead of paying the employees time-and-a-half for overtime work,
- Employer misclassifies employees as independent contractors in order to save money on payroll taxes and related expenses,
- Employer unlawfully informs employees that they would be paid at a lower hourly rate after the employees already performed the work, and
- Employer prevents employees from clocking in upon their arrival at the job site, or before their shifts are completed, causing the employees to perform free work during their shifts.
Litigation in state or federal court is often the most effective route to achieving justice for an individual employee. Class action litigation may also be a practical and efficient approach to pursuing owed wages where an employer is violating the rights of many employees through the same or similar course of conduct.
In New Jersey, the Wage and Hour Law and the Wage Payment Law allow employees to bring claims to recover owed wages that were not paid on time and in full, while its federal counterpart – the Fair Labor Standards Act (FLSA) – covers employees in every state. Those laws set clear mandates on the time and manner of payment and the minimum wages that must be paid to certain employees for regular and overtime hours. Overtime is often defined as any work performed in excess of 40 hours in any given week, and employees are generally required to be paid time-and-a-half for their overtime work. The state and federal wage laws also provide for tough legal remedies against employers who knowingly and intentionally violate an employee’s rights. Those penalties may include liquidated damages and the court may require that an employer pay an employee’s attorney’s fees and costs if the employee successfully proves at trial that an employer violated their rights.
For whistleblowers, the above-referenced laws and others provide legal protections and remedies for matters in which an employee is retaliated against for speaking up about their late or unpaid wages. Retaliation often involves termination, a demotion, or a decrease in hours. In New Jersey, the Conscientious Employee Protection Act (CEPA) protects whistleblowers and allows victims of retaliation to recover for any emotional distress they suffered due to the retaliation, in addition to punitive damages. Likewise, the Fair Labor Standards Act also allows victims of retaliation to be compensated for emotional distress when they are terminated because they complain of late or unpaid wages.
In a lawsuit for unpaid wages, the burden is on the employees to prove their rights have been violated. Building a case for owed wages often begins with reviewing an employee’s paystubs, timesheets, job description, and employment offer letter or contract, and listening to a client’s day-to-day experience on the job. Text messages, emails, and audio recordings are often invaluable in establishing whether an employer knew it was committing the violations and/or intended to retaliate against the employee for speaking up.
If you believe you are owed regular or overtime wages, are misclassified as an independent contractor, or have been retaliated against for complaining to your employer about either, call the experienced Labor & Employment Law attorneys at Malamut & Associates for a free consultation.