Here you are: your employer did not pay you or paid you less than you earned. How quickly should you react?
Under the federal law, you have 2 years to sue your employer. You will not be able to recover on the employer’s wage violation that are older than 2 years. For example, you work as a construction worker for ABC Corp. Your regular rate of pay is $12 per hour. Starting January 2012, your boss asked you to work 50 hours per week instead of 40 hours per week that you worked previously. ABC Corp. now pays you $600. This of course is a violation because 10 hours that you work over 40 hours each week is overtime and, by law, ABC Corp. must pay you at 1½ your regular rate for those hours, in other words $18 per hour. What you should be getting is $660 per week ($480 for the first 40 hours and $180 for 10 hours overtime.) This continues until ABC Corp. fires you in April of 2014 and you consult an employment lawyer. Here is the important part: even if you lawyer sues ABC Corp. right away, under federal law, you will not be able to recover on the overtime violations that occurred before April 2012.
There is one exception: the federal law gives you 3 years, if you can prove that the employer’s violations were willful. In general, other than honest mistakes where the employer really though it was complying with law, the violation will be willful. So in the above-described situation, your lawyer will ask for back pay going all the way back to April 2011 and you will likely get it.
So what happens if you are passed the 3-ear deadline? For example, the violation began in January 2011. Then under federal law you will be limited to recover back pay going only to April 2011. And the longer you wait, the more money you lose.
New York law actually allows you to recover back pay for wage and overtime violations going back 6 years, regardless of willfulness. So if your lawyer sues the employer in April 2014, under New York law, you will be able to recover back pay going as far back as April 2008. And for violations that happen today (April 2014), the deadline under the New York law will expire in April 2020.
So if New York gives you 6 years and the federal law give you only 2 or 3 years, then New York law is better and you can forget about your unpaid wages and overtime for 6 years? In New York, you can sue your employer for violating both the federal and New York law, and in some circumstances may recover more money then if you sued only under one law. Moreover, if all violations that you complain about happened more than three years ago, then the lawsuit cannot be filed in federal court, and will have to be filed in state court. We prefer federal court because the cases tend to move faster there, among other reasons.
There is one deadline that is relatively short, however. In a previous blog post we wrote that under certain circumstances New York law allows employees to personally sue owners of the company for unpaid wages. The employee must give written notice of his intent to sue the owners in writing within 180 days of his termination. When working for small companies, holding the owners personally liable may be very important. But unless this notice of intent is given within the 180-day deadline of termination of employment, the owners cannot be held personally liable.
Whether you decide to call our firm or some other lawyer, our advice is that you should do it as soon as you suspect that you are being underpaid. An employment attorney will evaluate your situation and determine if you are entitled to recovery. And often there may be other violations about which you did not even suspect.