Retaliation for Complaining About Wages
Your employer is cheating on wages. But you are afraid to complain. You feel it is better to have a job, even with the cheating, than to complain and be fired for complaining. Maybe you should wait until after you leave the employer, and then bring your claim. Sometime this can be a difficult choice. How do you prepare yourself for either situation?
Keep good records. Employers are required by law to keep to keep written wage records showing how many hours you worked each week and how much you were paid, and they are supposed to give you this information each week with a pay stub. You employer should tell you in writing if you are getting the minimum wage or overtime. If they don’t do this, especially if they pay you in cash, you should keep your own written records for each week, showing the hours you worked each day and the amount you were paid each week. This becomes more important if you have an irregular schedule, and you won’t have each week in your memory. For example, many restaurants change work schedules each week. Keep in mind that wage claims can go back six years.
If the employer does not have proper records, then your reasonable reconstruction of the time you worked and the amounts you were paid will be given credibility by the courts in New York State. If you are laid off or leave your job, you will then have a good basis to recover the wages that were stolen from you.
You can’t take it anymore. You have reached the point where you feel you have to complain because the wage theft is so unfair. And if you complain, your employer may retaliate. They might fire you, or reduce your hours, or take other actions to punish you. How do you protect yourself when you have reached this point?
If you are going to complain about wage violations, your complaint should be in writing, with proof that you actually made the complaint. You could send a letter by certified mail, or an email, or have a witness to support that you gave the employer notice of the wage violation. This proof is important, because if the employer retaliates, they are likely to cover up the fact that you complained about wage violations. They will look to find other reasons that they can point to for firing you, so that they can claim that your firing had nothing to do with any wage complaints that you made.
You should also try to find out the legal name of the employer if you are paid in cash, and the name of the person or people who control the workplace practices, such as hiring, firing, and scheduling and wage payments. This is because both the company and these individuals will be liable for wage theft. If you work in a restaurant, the legal name of the company should be registered with the New York City Department of Health, and should be posted in the restaurant.
How does the law protect you from retaliation for wage complaints? Not only the company, but the company agents who retaliate will be subject to liability. They can’t retaliate if you make a good faith complaint that they have violated the labor law with respect to wage payments, or other improper payroll practices. You don’t have to cite a specific section of the labor law. You could just say “I want to be paid at least the minimum wage, not what you are paying me.” Or “You should be paying me time and a half for overtime hours, not straight time.”
If you have other employees who are willing to testify in support of your claim, they would also be liable to your witnesses if they retaliate against your witnesses. Since improper pay practices are usually the same for other employees, the others may want to join you in a collective or class action, as there is strength in numbers.
The court can award you back wages, liquidated damages (for every dollar you are owed, the employer would have to pay two dollars), plus interest at 9% and reinstatement to your job.
Contact us online or call us at (212) 949-1001 so that we can review if your New York City employer has retaliated against you for complaining about wage violations, or has acted illegally in other ways in violation of the Fair Labor Standards Act (FLSA) or New York State Labor Law.