unpaid wages

Unpaid Wages

The New York State Department of Labor will probably not get involved in your case, because it involves too much money. They'll get involved only in small claims. I think the limit is $600.

So, you'll have to sue. You can go even to small claims court, if the amount involved is small enough. You don't need an attorney.

If you decide to hire an attorney. Make sure you have one who knows something about employment law. A lot of attorneys will look at the case as a simple contract action, and it is. But it is more.

Under New York law governing the payment of wages, you can get attorney's fees. That is, if you win the court will award an additional amount to cover the attorney's time. This is designed to encourage attorneys to represent employees in these wage claim cases.

In addition, you are entitled to liquidated damages, that is, an additional amount to cover the cost of the delay in payment, and as a penalty to the employer. Liquidated damages under New York law is 25% of what is owed.

I would certainly want to screen you to determine whether you are entitled to overtime. The inquiry can be detailed. If you are interested, call me.

Freelancers are not even employees, so that are not entitled to overtime. Employers a lot of times think they can escape overtime by labeling an employee a salaried employee. Well, it isn't that easy.

Under the federal law governing overtime, the Fair Labor Standards Act, there are two classes of employees, exempt and non-exempt. Employees are considered non-exempt unless they fall into a category of exempt employees. The three major exemptions (there are others) are for management, administrative and professional employees. Exempt employees are not entitled to overtime.

The Bush administration wants to make it tougher for employees to get overtime, by redefining employees so that more are considered exempt. The proposed regulations have been greeted negatively by Congress. With some luck, and a few calls from enough people, maybe those regulations will die in Congress.

The inquiry I would want to make is whether you fall into an exempt category. Even if you fall into an exempt category, I would want to inquire whether the employer has done anything taking you out of the exempt category.

I'll give an example. Attorneys would usually be considered to be in the exempt category for professionals. So attorneys are usually not entitled to overtime. But suppose we had a law firm that required its attorneys to show up at the office at a particular time, and stay to a particular time. The attorneys had to punch in and out, and, if they were late for, say, 15 minutes, they would be docked 15 minutes of pay. Well, in this case, those attorneys would fall out of the exempt category, and would be entitled to overtime, just like the secretaries in the office.

If you are entitled to overtime, FLSA entitles you to liquidated damages equal to the amount of overtime owed (in effect, you get twice what is owed you). In some cases, you can get double liquidated damages (that is, triple what is owed). In addition, you get attorney's fees. You can bring a lawsuit not only covering you, but also covering all other similarly situated employees.

posted by David M. Lira  |  Oct 3, 2003 09:29 AM [EST]