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If you’re a worker who believes you’re owed unpaid wages, there are a few pressing things to consider upfront, such as: (1) learning legal deadlines that may apply; and (2) promptly organizing information and documents that describe the unpaid wage issues, i.e. getting your ducks in a row.

When a worker with unpaid wages contacts me about potentially representing him or her– and when that worker has already prepared and organized documentation, such as spreadsheet summaries of estimated hours and wages, pay stubs in chronological order, policies applying to hours and wages, etc.– this makes everything more efficient.

I can more efficiently evaluate potential claims and options, and if legal action is pursued, that can usually occur more promptly, efficiently and effectively as well.

If your ducks are in a row, you’re more likely to hit the ground running. Okay, I’ll stop with the cliches.

If you are a worker paid a salary, then you may be ineligible for overtime pay, assuming other circumstances exist as well. (Being paid a salary is one of multiple criteria that must be met before an employer can consider you overtime-exempt).

However, some workers who are called “salaried” workers by their employers are not paid on a “salaried basis” as defined by overtime law, and are in fact eligible for overtime because of their non-salaried status under the law.

If an employer docks wages from a “salaried worker,” this can be a major no-no that can change the worker from “salaried” to hourly (overtime-eligible) status under the law.

For example, if on a given day a salaried worker leaves work four (4) hours early for personal reasons, an employer cannot dock the worker 4 hours wages for the missing work time.  As another example, an employer cannot dock a salaried worker an 8 hour day if the employer did not have work available, but the worker was able and willing to work the 8 hour day.

There are some exceptions, and circumstances where an employer can dock pay without affecting a worker’s salaried basis status.

The U.S. Department of Labor (DOL) has a Fact Sheet describing the salaried basis test, and how an employer’s docking of a worker’s wages can mean a worker– despite being called “salaried”– is not salaried for overtime law purposes.

If you have been docked hours and wages, despite being told you are paid by salary, you may want to review DOL’s Fact Sheet above in detail, and other information about salaried basis pay and overtime laws, to clarify whether the employer should be paying you overtime wages.

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Often, employers will classify a worker as an “independent contractor” — and many times the worker agrees to this categorization– and the worker is not paid overtime for hours worked over 40 per week.

However, if you are a worker who is called an “independent contractor,” that categorization may not apply for overtime-law purposes and more understanding of the law can help you determine whether you are eligible for overtime pay.

It is wage law’s standards, not the designations of the employer and worker, that ultimately control whether the worker is in actuality an “employee” under wage law standards who is entitled to overtime pay.

The Fair Labor Standards Act (FLSA), the federal overtime and minimum wage law, sets forth the standards for what makes a worker an independent contractor (who is not entitled to overtime) versus an employee (who is entitled to overtime).

According to the U.S. Department of Labor (DOL), which enforces the FLSA, employers commonly misclassify employees as independent contractors.  Employment situations where misclassifications are common– i.e. where workers are often wrongly labeled “independent contractors” and denied overtime pay– include construction-contractor, franchiser-franchisee, and volunteer relationships.

As a general matter, FLSA standards involve a weighing of facts by a Court, and they relate to the degree of economic independence from the employer the worker has.

DOL posted this Fact Sheet about an employment relationship, and the factors that distinguish a worker from being an independent contractor versus an employee. According to DOL’s Fact-Sheet summary, significant factors a court considers include:

1) The extent to which the services rendered are an integral part of the principal’s business.
2) The permanency of the relationship.
3) The amount of the alleged contractor’s investment in facilities and equipment.
4) The nature and degree of control by the principal.
5) The alleged contractor’s opportunities for profit and loss.
6) The amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.
7) The degree of independent business organization and operation.

As stated, these factors are fact-intensive, and rely on the discretion of a court.  If your independent contractor designation is keeping you from time and one-half rate pay for overtime hours, you may be considering whether you are an independent contractor under the FLSA, per the factors above.  For more guidance on how a working relationship like yours may be analyzed under the factors above and other applicable law and cases, you can consult DOL’s website resources, your State’s wage-enforcement agency (which may enforce State overtime laws very similar to the FLSA), and/or a wage attorney.

This post continues my series of tips, or things to consider, for workers with unpaid wages.

Tip #10 is this: Don’t Sign Documents the Employer Presents That You Disagree With, or Believe to Be False.

If you have unpaid wages, and an employer approaches you with a document to sign relating to the unpaid wages, chances are that document benefits the employer.

I am aware of employers who asked workers to sign off on:

• Timecards or payroll documents with underreported wages. For example, some employers make automatic1/2-hour pay deductions for a lunch period everyday, despite the worker having to work through the lunch period many days. Such documentation should reflect your actual hours and pay before you should be made to sign off on it.

• Settlement agreements that pay significantly less wages than the law requires.  Some employers, to their credit, self-identify wage underpayments and approach workers with settlement agreements in which the employers agree to pay the workers if the workers agree to waive potential legal claims. However, employers’ initial settlement offers (especially if the employees do not have attorneys) usually offer significantly less than the legally-required wages and/or damages. If it’s possible to have an attorney review and advise about a proposed settlement before applicable deadlines, this can be of assistance in potentially negotiating or winning a larger payment and avoiding potential pitfalls.

• An arbitration agreement.  These agreements (if signed by the employee) take away the employee’s right to go to court for an employment dispute, and in some instances take away the right to participate in a class action lawsuit. The employee must participate in arbitration, a process which lacks the full rights available in court, and often involves an arbitrator hand-selected by the employer, who has routinely dealt with the employer’s matters. Employers’ ability to impose one-sided arbitration agreements became even more severe due to the Supreme Court’s AT&T Mobility v. Concepcion decision, which allows arbitration agreements to (1) limit employment disputes to an arbitration forum (and prohibit court as a forum); AND (2) take away an employee’s right to participate in a class action, whether in court or in arbitration.

• False documentation, such as false work-leave forms, that serve the employer’s benefit.  This type of issue is common with H-1B workers, where some H-1B employers will try to get H-1B workers to sign forms indicating the workers took leaves of absence they did not in fact take. The H-1B employers who do this are often trying to cover up their “benching” of the workers and failure to pay the required wage.  If you are an H-1B worker (or employee of any kind) whose employer is confronting you with a false form, you should not sign the form and seek legal counsel before considering signature of something you know to be false and against your interests.

Please give careful time and thought to such documents before you sign them. If an employer is rushing or pressuring you to sign such documents, that is an even worse sign that the employer wants to act against your interests and not allow you a fair opportunity.

This post continues my series of tips, or things to consider, for workers with unpaid wages.

Tip #9 is this: Don’t Drop the A- (Attorney-) Bomb—that is, don’t tell the employer you have an attorney unless you really have an attorney and that attorney tells you to tell the employer you have an attorney.

Okay, that was a mouthful!

But as an attorney, I am often consulted by workers who– before they ever consulted with me or with another attorney– threatened the employer that they had done so.

I’ve even had workers who’d I’d never represented, and who’d never contacted me before, send their employers emails with my email address cc’d, to give the employer the impression that the workers had retained me.

Please do not make “A”-bomb threats like these!

Here’s why:

• Employers often view attorney threats as empty threats, thinking that if you really were going to have an attorney go after the employer, the employer would have heard that from the attorney, not from you.

• Employers who do believe the threat (1) will often try to hide their tracks and take concealed actions against you, now that you tipped them off you’re considering getting an attorney; and/or (2) will often try to get you to agree to a lowball settlement offer, before you get an attorney involved who may advise you of a higher potential case value and settlement valuation. Often, the employer does not offer a thing in result of the threat– I get inquiries from worker who were not only unsuccessful in that their A-Bomb threat got them no offer of wages or settlement money, but further, their threat resulted in the employer retaliating and/or firing them.

• The threat rarely works as well as actually getting a wage attorney.

When I represent workers with unpaid wages, the decision about when and how to inform the employer of me being retained is a very careful and well-planned decision.

When a worker makes that decision before consulting with me, the news is often delivered in ways that I wouldn’t have advised– too soon, too late, too angrily, too vaguely, etc.

It’s a significant decision to tell the employer about an attorney or potential legal action. Please consider talking to an attorney before you tell the employer you’re in contact with an attorney.

This post continues my series of tips, or things to consider, for workers with unpaid wages.

Tip #7 is this: use a date calculator to help with calculations of deadlines and/or unpaid wages.

For years, I have used a website date calculator, like this one, to help me calculate legal deadlines (statutes of limitations) and/or unpaid wages.

A date calculator website lets you (1) enter a start date (e.g. “5/1/2011″) and (2) enter a number of days (e.g. “300 days”), and then the website calculates the end date following that number of days (e.g. “2/15/12″ is the date 300 days after 5/1/2011).

This function can be a handy tool when calculating the deadline for a legal claim. For example, certain discrimination- and retaliation- based legal claims relating to unpaid wages have a 300-day deadline. (Please note that deadlines vary for different situations, and an attorney could evaluate applicable deadlines for the particular legal claims that may apply to a given situation).

If an attorney advised a 300-day legal deadline applied to a particular legal claim, a worker could use the wage-calculation function above to enter the date of the event at issue– e.g. a 5/1/2011 retaliatory job-termination of a worker fired for complaining about unequal pay based on gender– and the date calculator website will figure out the legal deadline date occurring 300 days after that initial event date.

Another helpful function of a date calculator website is to let you enter (1) a start date and (2) an end date, and then the website calculates the number of days between the dates.

This function can be helpful in figuring out how many weeks a worker was underpaid wages, and estimating the total unpaid wages over that time.

For example, if a worker estimates he was underpaid about $200/week between 4/12/2010 and 2/10/2011, he can use the website to calculate the total number of underpaid weeks and estimated unpaid wages at issue.

The worker can use a regular calculator to divide the 304 days by 7 days, which results in approximately 43 weeks. The 43 weeks can then be multiplied by $200/week (the estimate weekly unpaid wages above), and the total unpaid wage estimate in this example would be $200/wk x 43 wks = $8,600.

In sum, a date calculator can avoid the human time, risk and error that can be involved in counting a large number of calendar days, and can be a useful tool (along with a regular calculator, and legal advice about applicable deadlines) in calculating legal deadlines and/or estimated unpaid wages.

This post continues my series of tips, or things to consider, for workers with unpaid wages.

Tip #6 is this: When Finding a Wage Attorney, Think National, Ask the Important Questions Upfront, and Other Things to Consider.

Here’s an (obvious) disclosure upfront: I am a wage attorney, so it benefits me to talk to workers about the best ways to find a wage attorney.

So, while you should consider the source, so to speak, you should also consider the logic of what I’m about to say, to see if it makes sense and is worth taking into consideration.

The Search for a Wage Attorney: Think National

First, when you search for an attorney to assist with unpaid wage issues, think national. Don’t box yourself in by sticking to attorneys who are literally in your neighborhood, or who are referred to you via a limited method (e.g. on a list of pre-paid service attorneys).

The most important issue in your search for an attorney– regardless whether the attorney is local, in your State, or outside your State– is that the attorney has experience and achieves good results in the exact type of matter you are dealing with.

For example, there are several wage issues that I deal with routinely, and that I represent persons across the US for those claims.  There are other occasions where I partner with other law firms– often, law firms in different States– so their areas of work and expertise can join and complement mine to provide full representation.  And on other occasions, a worker will call me, I’ll hear what is going on, and I will find the particular issues can only be handled by other attorneys with practice expertise I do not have. In those instances, I give the worker recommendations as to where to find the best attorney.

The key is that you start with an attorney who you regard as knowledgeable with the wage issues you’re encountering, and who you trust.  If that attorney values solving your problem over all else– then the attorney will guide you to the right hands, whether it’s the attorney’s own hands and/or the hands of other attorneys who are experienced in the matters at issue.

When it comes to wage issues, it is often the case that the attorney down the block is willing to take your wage case, but is not experienced with your type of case.  A general-practice attorney– especially one who practices multiple areas outside of employment law, and who does not focus practice on individual- or plaintiff- side matters– will not have (and logistically could never have) specialized experience in employee-side wage issues.

In sum, when you look for a wage attorney, do not start with the issue of location.  Start with the issues of competency and trust. If you find a wage attorney who knows what she is talking about, and who you trust, you can ask that person whether she knows of an attorney who is local, if location is a more important consideration.  Chances are that that attorney can much better guide you into the best hands than could the Yellow Pages for instance.

There are certain types of wage claims where I tell a worker that they can only use an attorney licensed in that worker’s State, given the particular issue. So location can be a very important factor. However, it is not the first factor to consider.  Again, start with the issues of competency and trust.

When You Initially Talk to a Wage Attorney, Ask the Important (and Tough) Questions Upfront

If you are talking to an attorney for the first time about your unpaid wages, chances are, you are very interested in knowing things like this: (1) will you work on contingency, and how much in fees can I expect to pay? (2) do you have experience with my type of matter? (3) what type of results do your wage clients usually get?

I am surprised with how few workers ask me these questions upfront. I suspect because they are tough to ask.  Maybe you feel self-conscious to ask an attorney because you’re thinking of concerns like this– “Will this attorney feel like I’m questioning his honesty and competency?”

Ask anyway.

If you ask these questions (and other pointed questions on issues that are most important to you), you will get important information that you’ll need in order to feel comfortable and confident in the attorney.

If the attorney does not answer the questions squarely, and in a way you find satisfactory, then move on to an attorney who can.

Mistakes that Can Result from Failure to Find a Competent Wage Attorney

I run into many workers who contact me after something bad happened, and that wouldn’t have happened, had that person spoken to a competent wage attorney beforehand.  Here are common mistakes I see when a worker does not promptly speak to a competent attorney about underpaid wage issues:

• Problems of Misevaluation/Oversight: The worker (and/or an attorney he used that was inexperienced in wage matters) overlooked legal claims that could have benefited the worker, and focused on narrow or worse legal claims, or missed all legal claims altogether.

• Missed Deadlines: All too often, a worker contacts me after the deadline(s) (statutes of limitations) for her best legal claims have passed.

• Mistake in Strategy: Sometimes, workers will come to me after they or their attorney has undertaken a strategy– e.g. contacted an employer in a different manner or made a type of complaint that a competent wage attorney would not have recommended– and they are in a worse position for having taken those strategic actions.

• Overcharged Fees: Sometimes, workers pay thousands of dollars in out-of-pocket legal fees and/or costs before they realize they are not getting results in trying to get unpaid wages.  Most of my own wage cases involve contingency (pay-only-if-you-win or settle) representation.  If an attorney charges out of pocket legal fees, that is perfectly permissible.  But the attorney should be clear about what you can expect to pay, and what type of result is likely in return for that payment.

Problems like this can be avoided if you consider the tips and information above in your search for a wage attorney.

Conclusion

I hope this information is helpful if you are looking for an unpaid wage attorney.

Has your employer deducted money from your paycheck for hours that you worked?

Some employers will make mandatory deductions from hourly workers’ paychecks, without regard to time actually worked.  For example, some employers will automatically deduct one half-hour per day for a “required” lunch period, and will make this deduction without checking whether the employee was actually OFF work, and actually took a break, during that time.

Moreover, the employee’s work circumstances may have given him or her no choice but to work through lunch.  It is one thing for an employer to say an employee is free to take a lunch break, or “must” take a lunch break every day.  But that expectation of the employer does little good if there are competing expectations (e.g. busy schedules, complaining customers, limited time available, etc.) that demand an employee perform work during the designated lunch time.

Please know that if you actually WORK during the deducted periods of time (e.g. you worked during the deducted “lunch” breaks), it is NOT acceptable for the employer to reap the benefits of your work without paying you.

It is not enough for the employer to claim they told you that you were prohibited from working.

The Fair Labor Standard Act (FLSA) at 29 C.F.R. § 785.13 (Duty of management) provides the following:

“[I]t is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.”

If you are not being paid for work that you performed, you should consider having an employee rights attorney review your circumstances to see whether you should be receiving wages for the deducted periods, and whether the employer is violating wage law.  You may have good legal options to claim wages, and/or take back your free lunch.

DISCLAIMER: The information in this blog is not legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Attorney Michael Brown or the law firm of Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney (and an employment attorney for employment matters).

For more information about Wisconsin employment lawyer Michael F. Brown and Peterson, Berk & Cross, S.C., please visit here.

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