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How to File A Wage Claim | Bremer Whyte Brown & O’Meara

How to File A Wage Claim

Have you been paid all the money you’ve earned so far at work?

The good news is that most employers do pay their workers fairly and according to the law. However, this unfortunately isn’t always the case.

When employers don’t pay their workers according to the law, it’s called “wage theft” – and if you suspect this has happened to you then you should look into hiring an employment attorney because you may be entitled to worker’s compensation.

What Exactly Is Wage Theft?

Wage theft is exactly what it sounds like – a form of “stealing,” which can happen directly from your own employer.

This is no laughing matter.

Wage theft is a violation of the Fair Labor Standards Act (FLSA), and it occurs when workers do not receive their legally or contractually promised wages.

So if you are a worker who hasn’t received your legally or contractually promised wages, it’s safe to say you are a victim of wage theft. Luckily, there are already state and federal laws and regulations put in place for employers to follow which prevents this from happening. These laws and regulations are put in place to protect you – the employee – and to make sure you’re paid fairly.

Unfortunately, some employers seem to feel like these are not really “laws” after all. When this happens, don’t just sit back and let it happen. There are steps and actions you can take – which we will outline on this page – so you can claim your unpaid wages and come to a resolution.

First, it’s important to understand that sometimes it’s very easy to spot when your employer is engaged in suspicious or “dodgy” behavior with your compensation. Other times, it may go right over your head. That’s why it’s important to understand your wage and benefits clearly so you can make sure you are being compensated fairly.

A Deeper Look Into Wage Theft

Wage theft is more likely to happen in non-union workplaces. Yet, the reality is that wage theft is currently a national problem and can affect anything from your benefits to your overtime pay.

In order for you to pinpoint when and where you have been a victim, it’s best if you are aware of the common forms of wage theft. This way, you’ll be armed with the knowledge you’ll need to decide whether or not you should pursue a claim.

Some of the most common forms of wage theft are:

  • Non overtime pay
  • Not giving workers their last paycheck after a worker leaves a job
  • Not paying minimum wage
  • Not paying a worker at all

If you are (or have been) an hourly employee, then you should legally and rightfully get paid for every hour you work. If not, this results in an “hours violation” on behalf of the employer. If you suspect your employer has been violating this rule, then you might have a legal claim against your employer under state or federal wage and hour law.

The most common forms of hours violations are:

  • Time employees have to work “off the clock,” like before clocking in or after clocking out for the day
  • Meal periods or rest breaks that employees are forced to work through
  • Required training programs and classes which employees are not compensated for
  • Waiting time the employee must spend on the employer’s premises

While these are all common ways employers violate federal and state wage laws, it’s important to note that it is not an exhaustive list. Laws do vary from state to state, so before taking any legal action it’s important to check on the details and specifics regarding the wage laws in your state.

Here’s What To Do About It

It seems logical – and justified – to take legal action on an employer once you realize they have committed wage theft against you.

However, taking it to court isn’t always the first thing you should do.

Instead, the first thing to do is to check the wage claim process in your state. Wage claim processes vary from state to state, and certain states will recommend you first discuss this matter with the employer before you file a complaint.

If you happen to reside in California, please read on for a further look into the California Wage Claim Process. (If you reside in a state other than California, it may still be beneficial to read the next section to help you get a clear idea of what the complaint process can look like.)

A Look Into The California Wage Claim Filing Process

If you are an employee – or a former employee – with a claim to file regarding unpaid wages, you can file a claim with the Division of Labor Standards Enforcement (DLSE).

According to the State of California Department of Industrial Relations, “an employee (plaintiff) alleging the non-payment of wages or other worker’s compensation by his or her employer (defendant), must file a claim (the DLSE Form 1, Initial Report or Claim form) with a local office of DLSE to initiate investigation of the claim by the Labor Commissioner.”

The State of California requires a number of forms and claims to be completed in the Wage Claim Processes. These forms cover everything from unpaid wages, minimum wage issues, meal and rest period violations, unpaid commissions, vacation pay, and more.

In addition to the completed Initial Report or Claim form, you as the plaintiff have a variety of documents you can submit. These documents may be submitted for your benefit as additional support for your claim.

According to the State of California Department of Industrial Relations, here is a list of documents you can submit:

  • Time records you kept of the hours and dates worked that support the claim.
  • Paychecks and pay stubs showing the wages paid during the claim period.
  • Dishonored (or “bounced”) paycheck(s) during the claim period.
  • Notice of employment information (pursuant to Labor Code Section 2810.5, a notice from the employer that employees may have received after January 1, 2012, which indicates the employee’s basic employment information including rate of pay, any overtime pay, whether the employee was paid by the hour, shift, day, week, salary, piece, commission, or otherwise, and the regular payday).

If you don’t have all your records, don’t worry. It’s the responsibility of the employer to keep thorough and accurate time and payroll records – this is not the responsibility of you, the employee.

After this, your claim will be reviewed and you will be notified within 30 days of the next steps in your claim.

What Happens After Your Claim Is Filed

Let’s continue with the example of the wage claim process in the State of California.

After a claim is filed and reviewed in California, you will be notified if and when a conference will be held. These conferences are mediated and relatively informal, where both parties will come together with the goal to see if the claim can be resolved without a hearing.

If a resolution is not reached during the conference, then it may move on to a hearing.

Both parties will receive notice of a hearing. These hearings are formal proceedings, where attorneys, evidence, witnesses, and cross-examination may all be involved.

A decision is reached and parties are notified within 15 days after the hearing.

Note: The Division of Labor Standards Enforcement Claims are not always simple and clear-cut. Sometimes claims are complex, and involve a larger number of employees and records. When this is the case, the Bureau of Field Enforcement will usually get involved in an investigation first.

Conclusion

Employers are not perfect. They can – and sometimes do – violate labor laws. Remember: the reality is that wage theft is a national problem.

Maybe it’s blatant dishonesty, or maybe it really was just an “honest mistake.” Regardless, you don’t have to feel powerless if you or someone you know is a victim of wage theft. In fact, it’s crucial for you to stand up for your rights as an employee and fight for what is rightfully yours.

While we did go over examples of filing wage claims in California, it’s important to remember that laws and procedures do vary from state to state. If you’re not in California, please do your due diligence to see what your options are, what steps you can take, and what the process will be.

Also, please review the different types of wage theft outlined here. Then you can determine whether or not you have been – or are – a victim of this. This isn’t something to brush off, because – as we mentioned earlier – wage theft is a violation of the Fair Labor Standards Act (FLSA).

There are many resources available to help you make sense of this entire process.

In the end, the only one who can really take control of the situation is you. Your employer (or former employer) won’t do it for you. The state can’t do anything for you if you don’t take the appropriate steps to reach out. And you’re the only one who can begin taking appropriate action.

If you would like to contact us for a consultation and file your claim, or to discuss any wage theft you may have experienced, then please feel free to reach out to Bremer Whyte Brown O’Meara today.