Unpaid Wages, Minimum Wage
The legal definition of “wages” is: All amounts owed for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation.
An employee is entitled to the prompt payment of all wages earned, including commissions. Failure to properly pay an employee may subject the employer to certain penalties. The employee will, of course, also be entitled to recover all unpaid wages during the applicable statute of limitations period (three or four years), as well as, interest, reasonable attorneys' fees and costs of suit.
“Working Off-the Clock”
Employers cannot expect, require or permit their non-exempt employees to work off-the-clock without compensation. All time spent performing work for the benefit of the employer is compensable. The fact that an employer may not per se require you to perform work without pay does not limit liability if the employer knew or should have known that a non-exempt employee was indeed working without being paid.
The following represents examples of typical situations when non-exempt employees should be, but are not, compensated by their employers:
- Working through a lunch break (i.e., eating at your desk while performing work) or coming back to work before the conclusion of a lunch break
- Pre-shift or post-shift duties which are performed off-the-clock (Example: Restaurant workers not permitted to clock in until they finish preparing their assigned station)
- Travel time between assignments during regularly scheduled hours (this excludes travel from home to the first assignment or travel from the last assignment to home)
- Working from home
Changes in Pay
Employers are generally permitted to set and change the wages of their employees, including commissions. However, once wages or commission arrangements are set and an employee works under a particular wage or commission arrangement, an employer may only change the terms under which those wages or commissions are earned on a go-forward basis, not on a retroactive basis.
Example 1: An employee earns $15 per hour and works the first half of the month at this rate. Wages have not yet been paid. The employer desires to change the wage rate to $12 per hour. The employer may only apply the new wage rate to the second half of the month. The change cannot be made retroactively to affect wages already earned but unpaid in the first half of the month.
Example 2: An employee earns 5% commission and operates under this commission schedule during Month A. Employee expects to receive a commission check for commission earned in Month A during Month B. At the commencement of Month B, employer modifies the commission schedule to 2% and duly notifies the employee of the change at that time. Under these circumstances, the 2% commission may lawfully become effective at the beginning of Month B. The 5% commission remains applicable to Month A despite the fact that the commission check for Month A has not been tendered yet.
No Waiver of Minimum Wage
Although an employer is generally permitted to set and change wages, an employer may not require an employee to work for a wage less than the legal minimum wage. An employee who works for a wage less than the legal minimum wage is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage, including interest, applicable penalties, reasonable attorneys' fees and costs of suit – despite the existence of a mutual agreement to the contrary. If you believe you are owed wages, please contact Duvel Law, APC., for a more complete evaluation of your rights.
Employees who have complained about the legitimacy of an employer's wage-related policy and who have suffered adverse employment action as a result, may also have a separate claim of retaliation which may make available the following additional damages: Compensatory damages, emotional distress damages, and punitive damages.