Employers hear a lot about overtime violations and other wage and hour offenses. There are so many rules to learn and so many cases in the news. It can be a little scary to think about the consequences of getting an employee’s payroll wrong.
There’s some good news and some bad news for employers in this regard.
Inadvertent Pay Mistakes
When an honest mistake is made, and gets corrected as soon as the employee spots it and brings it to the employer’s attention, the mistake might fall under the Window of Correction and get pardoned by the DOL. If an employee sues its employer and the DOL recognizes that the company diligently followed wage and hour laws but simply made an inadvertent mistake which it quickly fixed, the employer might escape without getting hefty violation fees. Some common honest mistakes include:
- Making payroll deductions for exempt employees
- Possibly other minor pay errors
The DOL usually rules in favor of employees but sometimes an honest mistake is recognized as such and the employer isn’t punished. For this reason, it is important to correct mistakes when they’re spotted.
Deliberate Pay Mistakes
On the other hand, some employers deliberately violate wage and hour laws. Their reasons vary. Some are clearly just trying to save money at the employee’s expense and some are just taking shortcuts to save time. Either way, the DOL does not look kindly upon some of these common violations:
Malicious errors
- Manually adjusting time records with intent to reduce overtime
- Paying straight time for all hours, even for hours over 40 in a workweek
- Allowing employees to finish work at home on their own time without pay
- Refusing to pay for “unauthorized” overtime
- Paying under minimum wage
Lazy errors
- Misclassifying hourly employees as exempt or contractors
- Not paying employees for setup time, travel time, or other unconventional types of work
- Calculating overtime biweekly rather than weekly (FLSA clearly states that overtime is calculated for hours worked over 40 in a workweek at a rate not less than one-half times their regular rate)
Reducing employees’ hours and cutting out overtime is a deliberate wage and hour violation that hurts employees and benefits employers.
Some of the others can potentially hurt employees and so are also investigated. For example, an employee that is classified as exempt and paid a monthly salary that is at or above minimum wage and who never works over 40 hours isn’t actually losing anything by being misclassified but the DOL would probably prosecute anyway if the employer were investigated because this type of error could result in lost wages.
Some employers just don’t know about setup time, travel time, and waiting time. They aren’t aware that they have to pay their employees when they are ready and willing and scheduled to work even if the work they’re doing doesn’t look like work. This can be a lazy mistake when employers fail to learn wage and hour laws.
For employers that don’t use an automatic time clock system, calculating overtime is a terrible pain and if pay day is every two weeks, then calculating overtime for that two week period just seems so much easier. It’s not legal though. Overtime has to be calculated each workweek period of 7 days.
Employers that make any of these mistakes could get a knock at their door by a Department of Labor investigator.
How Violations Are Reported
Any employee can google “report pay violations” or some such term and land on this DOL page: https://www.dol.gov/whd/howtofilecomplaint.htm where they can learn all they need to know about filing a complaint against their employer.
As the DOL says themselves, most investigations are initiated by employee complaints. Being a kind, knowledgeable, and law abiding employer is the safest route these days.
How Investigations Are Conducted
A Department of Labor investigation is done anonymously and unannounced. The investigation will begin without warning. However, the employer can be represented by its attorney or accountant at any time.
When the investigation begins, “The WHD investigator will identify himself/herself and present official credentials. The investigator will explain the investigation process and the types of records required during the review”
An investigation consists of the following steps:
Examination of records to determine which laws or exemptions apply. These records include, for example, those showing the employer’s annual dollar volume of business transactions, involvement in interstate commerce, and work on government contracts. Information from an employer’s records will not be revealed to unauthorized persons.
Examination of payroll and time records, and taking notes or making transcriptions or photocopies essential to the investigation.
Interviews with certain employees in private. The purpose of these interviews is to verify the employer’s payroll and time records, to identify workers’ particular duties in sufficient detail to decide which exemptions apply, if any, and to confirm that minors are legally employed. Interviews are normally conducted on the employer’s premises. In some instances, present and former employees may be interviewed at their homes or by mail or telephone.
When all the fact-finding steps have been completed, the investigator will ask to meet with the employer and/or a representative of the firm who has authority to reach decisions and commit the employer to corrective actions if violations have occurred. The employer will be told whether violations have occurred and, if so, what they are and how to correct them. If back wages are owed to employees because of minimum wage or overtime violations, the investigator will request payment of back wages and may ask the employer to compute the amounts due.
How to Avoid These Violations
Hiring an HR consultant or having an in house HR department can help a company avoid these problems since human resources professionals are trained in labor laws.
Some small businesses cannot bear that expense and so reading up on wage an hour laws on the DOL’s website is a must. Using a time tracking service and payroll service that abide by pay and record keeping rules will also help reduce the possibility of errors.
Want to take the first step?
38 Responses
I have a question about Time card should the hours I work be shown on my pay stub even if I get paid salary
I’m presently qualified for Family & Medical Leave Act (FMLA) for the care of a family member. My employer takes out 8 hours of my FMLA every time I decline a forced overtime assignment. My question: Can my employer take hours from my FMLA account if I refuse to accept a forced overtime assignment?
I am an hourly employee and I had 49 hours on the time clock..11 of those hours were traveling on a bus out of town for training….They only paid me straight pay..is this legal?
Hi
I would like to know is it fair for me not to be paid the hours that I’m supposed to work according to the code of conduct. code of conduct says I must work 194 hours a month, but only end up being scheduled for 170 hours. How should I deal with this matter?
Thanks.
If someone is not following the code of conduct, you would typically want to talk to a manager or supervisor about it.
I’m actually trying to get paid for a day I was at work and did not get paid. how do I get information about going to file for charges against my employer for lack of payment
Hi there. Under FLSA regulation, you are supposed to get paid for the hours that you work. You may want to speak with the Human Resources team at your workplace and let them know what happened, but keep in mind that you will need to have records. If you need to take it further, I would suggest speaking with your state labor agency to see what your options are.
i was getting paid a monthly salary of 1500 i worked 40 hours a week. sometimes more. but i was told not to clock on once i was moved to salary. i work for a restaurant, and i would have to do the ordering from home unpaid, and go to meetings and come in early/stay late regularly. i feel i was completely taken advantage of. was she meeting the minimum wage requirements?
there are cretin salary expectations that need to be met, first,minimum wage , or 467 weekly on salary( recently changed to 674 weekly) so if you work full time and get 1500 before taxes per month they are breaking Exemption laws.
Than it also depends if you meet the requirements for exemption.
There was an investigation on my employer for a fringe benifit not being paid properly. We went to the interview and were told that the company owes backpay. The investigation is over. How long does the employer have, to pay the backpay owed?
The deadline will depend on the investigator that worked on the case.
For the unpaid overtime how far can i file backwages. I
This will be a question for a lawyer because it can vary case by case.
I work for extra personal and employment agency contracted to local government, the agency have altered all my pay rates for over time, paying me less with out any consolation leaving greatly short in my pay.
When I tried to sort this with them I was basically informed that if I like the job to take it on the chin shut up and get on with it, can you help please.
The employer can pay you whatever they want unless you’re under contract or under minimum wage. It may not seem fair, but there’s not much you can do about it unless you have a prior agreement to the contrary.
I was an hourly employee that got 2-10 hours of Ot just about every week. My hourly pay was in the bottom quarter of my position (after nine years) already so it help get me closer to the middle at least. When they complained about it, i felt forced to work off the clock. One day my manager called me into her office and told me that effective this pay period that started 9 days prior to this meeting, I was now hourly so there was no need to clock in and out anymore and that there would be no change in pay! This now took care of the OT pay. I had already worked over most of those 9 days but I was not paid for it. She said everyone under her ‘had to be salary’, however one girl stayed hourly for several months until leaving the company. Not only was I forced to go salary with noo change in pay….I was also given additional work that they kept saying would get better but continued for a whole year until I finally was forced to quit or work 60 hours a week!
Is this legal? Is there anything I can do ?
Technically you do not need to get a change in pay if you are switching from an hourly employee to a salary employee. According to the Department of Labor, employees generally must be paid at not less than $455 per week on a salary basis, and there are no other pay requirements. A pay raise would potentially be a perk. In regards to the status of your employment, your employer should have let you know in advance that your status changed from non-exempt to exempt. In some cases, your employer may have to pay you any overtime that was owed previously. You should speak with a legal counsel to see if you potentially have a legal case.
I worked for a company where we clocked in and out, but he automatically took out half hour lunch breaks from everyone’s pay. I did not take lunch breaks like everyone else. I was required to stay and answer phones, receive shipments and deal with walk in customers daily. On the occasion that I did take a lunch, I would clock out and back in after. It it under investigation now but they are telling me since I was the only one who has to do this it would be hard to prove since they cannot ask other employees specifically about me. Is it legal for an employer to automatically take out of your hours clocked in for lunch breaks? And how can the investigator know what is correct when the employer adjusted times at the end of each week?
Hi, it is legal for an employer to automatically deduct a lunch break during your shift. However, if you are working during the “lunch break”, it would not be considered a bona fide meal. If you have an online time tracking system, there should be an audit trail. In the audit trail, the investigator would be able to see who made each time stamp and any edits that came along with it. If your time keeping system does not keep an audit trail, unfortunately I’m not sure how they will be able to see your data.
I was suspended for three days without pay for a manufactured reason to give me a 2nd strike. My question is that I was asked and advised to work from home which is computer work and phone calls. Proof is all emails and calls associated with the 3 days. I was not paid for this and inquired as to why and no response was given. I had mediation and asked EEOC about their response to my wage issue. No response given. Can I file a claim with a EEOC investigation ongoing? This happened in Nov 2018.
Unfortunately I will not be able to tell you if you will be able to file a claim with the EEOC. The EEOC has a guide, and I recommend that you take a look at it. They have a phone number listed on this site that you can call and speak with someone about your situation. They should be able to tell you if you have a case and if you need to file a claim.
I was missing 20 hrs from my paycheck and when I told my supervisor and he said that the paper work wasn’t done correctly, but I wasn’t in charge of the paperwork I told him that I don’t work for free that I need my money and he said if you don’t like it there’s the door and I left the company. Can I file a complaint for getting fired and not getting paid?
Before moving forward with a complaint, you will want to make sure that you have proof that you worked those 20 hours and didn’t get paid for them. It sounds like you may have a worker’s compensation case because you didn’t get compensated for the hours worked. I would suggest speaking with the Department of Labor to see if you have a case. You can find their contact information here.
I worked for a restaurant for 6 months. Never clocked in or out through a time clock. We basically kept track of hours manually. Some days I would work 13 hours with no overtime pay. Can I prove wrong doing by employer?
Keep in mind that there is no paper trail. They would pay me through payroll. Only 40 hours a week. I worked 13 hours a day for 3 days. Only paid 39 hours.
It would be quite difficult to prove that you worked specific hours if you don’t have anything written down. I would suggest speaking with a legal counsel to review your options. Additionally, I would also suggest that you speak with your boss about implementing a reliable time tracking solution at your workplace. Timesheets.com, for example, allows employees to clock in, clock out, record time off, and accurately keeps track of overtime. Everything is kept in an audit trail so situations like yours are avoided. I would definitely look into it if I were you.
Um if you have no already write down the hours. the employer must pay you for all hours worked as a non-exempt hourly employee. they even have to pay you for unauthorized hours. you can call the DOL/WHD or google FLSA laws.
I work for a towing company I make 30 present of everything I hook to my boss owes me almost 10 g I no I’m dumb for staying there he keeps promising me to pay up but dont do it I can prove every dime he owes me can someone tell me how i can get my money
If you believe that your employer hasn’t compensated you correctly for the hours you worked, you will want to take this up with the Department of Labor and file a complaint: https://www.dol.gov/agencies/whd/contact/complaints. The best way to get compensated correctly is to track your time accurately. If you need to track your horly time, you can use Timesheets.com to track your hours. You can even track your own time for free so you have accurate records to make your claims stronger!
Hello,
I filed a complaint against an employer for misclassifing exempt employees. The investigation is completed and I’m not sure the investigator explained what happened. It just said they were found to be in violation of section 207 and 211 they were not paying non exempt employees overtime correctly. And that the employer agreed to pay back pay. I tied reaching out to the investigator but never received a response. It looks like he cut a deal and gave them the lowest of all the violations screwing the exempt employees. I know he has to give me his opinion of why he decided one way or the other but he does not respond. I’m not sure if I need to sue my employer or what to do.
If you haven’t already spoken with Wage and Hour Violations with the DOL, I suggest that you speak with a legal representative about this matter.
my hours were cut by the Pandemic that hit us. I was told I could get partial unemployment. Now my employer has seen what I am going to receive in benefits, he wants to cut my hours more to bring the benefits down to what my hourly wage normally is. Can they do that legally?
Unless your contract says otherwise or if it’s due to discriminatory reasons, an employer can cut your pay and hours at any time (as long as your pay isn’t below minimum wage). However, this is something you may want to ask a legal counsel just to be sure.
I work construction on government jobs (prevailing wage) my company has a pension plan they make us pay 20% right off the top of our pay every week to. It is not reflected on our pay stubs, they simply take the total hourly rate $65x.8= $52, this is the amount my check reflects I make an hour. Then with the insurance it went down another $2/hr, none of it is shown on the check that we make $65 and then the pension comes out and then the insurance comes out. Is this correct??? Doesn’t seem right.
I was an assistant manager at a fast food restaurant and was paid a salary of 725 a week and was considered exempt however my job duties daily consisted of doing prep doing dishes and packing food. I really had no authority as my manager was friends with most of the crew. when they called in sick or going to be late they would text her at home even though I was manager on duty I never really was. I finally was forced to give my 2 weeks as the stress and work was getting to me. On truck days it was my responsibility to put the truck away and do my prep and dishes. Am I entitled to overtime pay as i generally did crew work for all of my shift.
An exempt salaried employee gets paid the same amount each week, no matter how many hours he/she works and what type of work they do. As long as you were meeting salary basis requirements, you are fine in that regard. However, an employer must also comply with “exempt job duties”, which are outlined by the FLSA. If exempt, you are supposed to meet certain exempt requirements, such as being a manager, a leader, having more work duties, and so on. The FLSA states “Determining whether an employee has management as the primary duty of the position requires case-by-case evaluation. A “rule of thumb” is to determine if the employee is “in charge” of a department or subdivision of the enterprise (such as a shift). One handy clue might be to ask who a telephone inquiry would be directed to if the called asked for “the boss.” Typically, only one employee is “in charge” at any particular time. Thus, for example, if a “sergeant” and a “lieutenant” are each at work at the same time (in the same unit or subunit of the organization), only the lieutenant is “in charge” during that time.”. That being said, your employer might have unclassified you, however, that’s something that would need to be determined by the DOL. You would have to file a claim with the Wage and hour Division :https://www.dol.gov/agencies/whd
Hello Lindsay,
I was just asked by my employer to go back to my timesheet from JAN-APR 2020 and ‘readjust” and submit “timesheet details” as he suspects an “error.” It is July and he has already given me a paycheck for those months obviously. I was required to submit the only timesheet for years but my employer asked me to also provide timesheet details which includes the break down of every min/hour that I worked and “charging” him for (according to his word) since this May. I just got an e-mail from him now and he said ” I reviewed your timesheet of JAN-APR and hours of work seems to be higher than it should, please make the correction and also submit the breakdown details of hours you worked” I entered the timesheet honestly and I can not possibly retrace how I spent every hour and minute that I worked on back in JAN-APR. For your reference, there is no HR since it’s a small business and my boss is the employer and I am the only employee aside from his friend who helps with accounting and his wife which I found out recently that she has been collecting a check every month as “employee” but she actually doesn’t work there ( I am assuming it’s beneficial for a tax-deductible related reason? ) I do project management and sales and admin etc,. My question is since I can’t provide the details break down of JAN-APR, is there some action my employer can take against me?? Thank you for your time in advance and appreciate any tips and feedback.
Hi Katie. First, I want to note that this is exactly why you need a reliable time tracking system– this not only ensures that your employer has records, but it also protects you so that you have proper time records for instances like these. Timesheets.com, a time and expense tracking service is online and is very affordable, and it captures time stamps and stores your records for safe-keeping automatically– you can even use it for yourself for free. I’m not sure what action he’s trying to do… is he trying to take some of your pay back? He can legally take back your pay if he overpaid you; however, that requirement varies by state. Some states don’t let employers take away pay that an employee earned. Ultimately, you’ll need to check with your local labor board to see what your state’s law is and whether or not your employer has the evidence to take action against you.
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Department of Labor Investigations for Wage and Hour Violations