You notice your paycheck is short. So you start doing the math. After all, numbers don’t lie. You know you worked more than 40 hours last week and were supposed to be paid overtime this week. But you weren’t. At first, you wonder if it’s just a mistake. Unsure, you look back at earlier paystubs. Same problem. That’s when it hits you that this isn’t a one-off error. It’s wage theft.
Do you say something to your supervisor? Should you report it to Human Resources? In my experience, those conversations rarely go the way workers hope. Supervisors often respond defensively or threaten to punish you for raising the issue, as if you’re the problem. HR, if they respond at all, may assure you that they’ll “look into it”. Weeks go by and nothing has changed.
Frustrated and seemingly running out of options, you might look for help elsewhere. Maybe you’ve asked friends, family, or ChatGPT for help on what to do next. The advice is usually well-meaning, but more often than not it boils down to one suggestion: “Report your employer to the labor board.” Sounds simple enough, right? But in states like Texas that advice can fall short or limit you from recovering the full amount of wages you’re owed. Better alternatives, such as hiring an unpaid wages lawyer or getting help from your union, exist.
This week’s theme: whether you should report your employer to the labor board, or hire an unpaid wages lawyer to recover your earnings.
If you’re going to report your employer to the labor board, do it quickly.
In Texas, you have 180 days to file a wage claim with the state labor board. The clock on that 180-day period starts running the day you were supposed to be paid, but weren’t. If you miss that deadline, the Texas Workforce Commission will deny your wage claim not matter how strong it may be. This may not be the smartest option when your employer has been pocketing your wages for more than 180 days.
Fortunately, it’s not your only option. With the help of an unpaid wages lawyer, you may instead file a wage theft lawsuit in court and maximize your recovery. Wage theft lawsuits allow you to pursue up to 3 years of unpaid earnings, plus a penalty equal to that amount. It can make a huge difference if you’ve been losing wages for a long period of time.
The labor board doesn’t cost you money, but neither does an unpaid wages lawyer.
The most common reasons you may have been told to contact the labor board first and avoid calling a lawyer, is cost. “Why pay attorney’s fees,” the thinking goes, “when the labor board is free?” What most don’t realize is that, when you hire an unpaid wages lawyer to file your wage claim, you don’t pay any upfront fees either. Federal law makes your employer responsible for paying your attorney’s fees and court costs on top of the wages they owe you. When you hire an unpaid wages lawyer, like me, that means:
- You don’t pay anything up front.
- If there’s no recovery, you don’t owe your lawyer.
- If there is a recovery, your lawyer’s pay comes from your employer, not your pocket.
Therefore, cost shouldn’t be a reason you avoid calling a lawyer. In fact, it means your lawyer is motivated to maximize your recovery, since their pay depends on it.
The labor board may let your employer get away with wage theft, even if you have a solid case.
Even when workers prove their cases to the satisfaction of the labor board, employers often manage to avoid paying back the wages they owe. Labor boards have limited resources to go after employers for nonpayment of wages and strict enforcement priorities. If your case doesn’t fall within the agency’s enforcement priorities, then they may decline to pursue it. That’s exactly what happened to a group of tipped workers in Oregon. They courageously reported their employer to the U.S. Department of Labor, which investigated their tip theft claims. Although the agency determined that their employer allegedly stole more than $800,000 in tips, the agency decided not to pursue their case.
(u/super_sploger/reddit.com)
Even when workers prove their cases to the satisfaction of the labor board, employers still avoid paying back the wages they owe. Labor boards have limited resources and strict enforcement priorities. In Texas, for example, there are 37 wage theft investigators for the entire state. On top of that, the labor boards have strict enforcement priorities. These enforcement priorities aren’t always shared, but they dictate which cases the agency will (and won’t) accept. If your case is outside their enforcement priorities, they may decline to pursue it.
That’s exactly what happened to a group of tipped workers in Oregon. They courageously reported their employer to the U.S. Department of Labor. The agency investigated their tip theft claims and determined that their employer allegedly stole more than $800,000 in tips. Yet, after their employer refused to pay up, the agency dropped the case. In all, the agency has let more than 16,000 employers get away with not paying $20.3 million in back wages since 2005.
On the other hand, unpaid wages lawyers aren’t bound by the same enforcement priorities. While we don’t accept all potential cases either, we often have much more flexibility in the cases we will accept. At my office, we see wage cases through from start to finish. Unlike the civil servants at the labor board, we aren’t paid unless you are paid so we do everything in our power to force your employer to pay up.
The labor board won’t touch complex cases.
State and federal laws limit the types of cases that labor boards can pursue. In most instances, a state labor board can only enforce state labor laws and the U.S. Department of Labor can only enforce federal wage and hour laws. So what happens if you have a case that involves both state and federal law claims? I often meet clients who experience wage theft and pay discrimination, or wage theft and breach of contract.
While the DOL may pursue the wage theft claims it can’t go after your employer for pay discrimination or violating your contract. If you go the labor board route with these complex cases, you’ll likely get a referral to the U.S. Equal Employment Opportunity Commission for help with those additional claims as the DOL cannot pursue those.
Unpaid wages lawyers, on the other hand, can pursue local, state and federal claims and ensure you get all the relief you’re entitled to receive. We don’t have to contend with multiple different agencies. Instead, we file in court and have the same judge and jury assigned to consider your entire case all at once.
The labor board in Texas isn’t very effective at recovering unpaid wages
Stopping wage theft requires strong enforcement. But when workers win at the Texas Workforce Commission, getting their money back is another story. A recent analysis of more than a decade of wage theft claims found that while the labor board ordered $99 million in unpaid wages, only $21 million had ever been recovered. Put differently, the labor board let employers get away with not paying 80% of workers who won their wage theft claims at the labor board. Filing with the labor board may seem like the safer, cheaper, and simpler route. But the reality is that even when the agency rules in your favor, there’s a strong chance you’ll never actually see the money.
By contrast, an unpaid wages lawyer has tools to not only prove you’re owed the money, but to ensure your employer actually pays up.