Note: Wage Hour does not have the authority to force an employer to pay back wages except through litigation. If the employer (or his representative) and the investigator cannot reach an agreement to resolve the matter, the employer may request a meeting with the investigator’s supervisor. If no agreement is reached at that level, listed below are some of the options for Wage Hour.
Wage Hour may bring an action in Federal District Court to compel the employer to comply with the FLSA and to pay the back wages that are due the employees. If this action is taken they will typically sue for a three-year period (vs. a two-year period for investigations that are resolved through negotiation), as they will allege willful violation of the Act. In addition they will ask for liquidated damages in an amount equal to the amount of back wages that are due.
Wage Hour may also assess penalties for repeated and/or willful violations of the minimum wage and overtime provisions of the Act of up to $1100 per employee. If minors were found to be illegally employed they may assess penalties of up to $11,000 per minor.
In situations where Wage Hour chooses not to pursue litigation, they may notify the employees of the fact that they are due back wages and of the employee’s right to bring a private suit to recover back wages. Additionally, the employee will be informed of his right to recover liquidated damages, attorney fees and court costs.
Employers should also be aware that employees may bring a suit under the FLSA without contacting Wage Hour. There are attorneys that specialize in Wage Hour suits. As a result there has been more private FLSA litigation in recent years than under any of the other employment statutes. In 2007, the ten largest Wage Hour settlements resulted in employers paying for more that $300 million in back wages.
In summation, if you are one of the “chosen” ones, be cooperative and courteous to the investigator so that the investigation can be completed as quickly as possible. However, you should only provide the information requested and only respond to the questions that are asked. Further, if you are asked a question that you do not feel comfortable answering, stall the investigator while you seek guidance from your legal representative.
Lyndel L. Erwin, Wage Hour Consultant Lehr Middlebrooks & Vreeland, P.C. 2021 Third Avenue North Birmingham, AL 35203 205-323-9272 (direct) 205 326-3008 (telefax)
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