Unpaid Wages: Do You Need a Lawyer?

Payment of wages is governed by federal and state laws and regulations. Each of these sets of rules is extensive, and the interplay among them is complicated. If your employer has not paid you fully for your work, you may be entitled to penalties and, in some states, attorney's fees, in addition to payment of wages owed. And, in certain circumstances, an employer's failure to pay wages may give you grounds to bring other claims, such as claims of unfair competition (in California, for example).

Wage Claims

You may have a claim for unpaid wages if your employer has failed to pay you:

• minimum wage
• for break time provided by law (or has not allowed you to take required breaks)
• for "off-the-clock" work
• for time you need to put on or take off safety or other work-related gear or uniforms
• for untaken, accrued vacation time (if required by state law)
• premium overtime pay for hours worked over the legal straight-hour maximum (over 40 hours in a workweek under federal law; over 8 hours in a workday under some state laws), or
• for travel time during the workday that is related to work (and, in some states, certain travel to and from work).

But, these are not clear cut claims. For example, even a minimum wage claim is complicated if you work for tips or receive commissions. And, not all travel time must be compensated. With a lawyer's assistance, you can figure out whether your employer's conduct is a violation of state or federal law.

What Can a Lawyer Do?

In addition to figuring out if your employer has violated a federal or state law, an employment lawyer can present you with the options for challenging an employer's illegal conduct and discuss whether you have a case worth pursuing.

Discuss Your Options

When an employer violates wage and hour laws, an employee often can sue the employer. But, in many situations, the employee may have other options. For example, in some states, you can file a claim for unpaid wages against your employer with the state labor department, which will then hold a hearing to issue a finding on the claim. This is a less expensive and quicker alternative to a lawsuit but it may carry disadvantages that a lawyer can point out to you (such as foreclosing the option of a lawsuit or limiting the damages you can recover).

Another option may be to contact the employer informally to try to negotiate a settlement of your wage claim. An employment lawyer can compare these options for you so you can make an informed decision about what to do.

Cost/Benefit Analysis

An employment lawyer can also give you an assessment of your likelihood of prevailing in any of the above options, and the cost for undertaking each of them. You and your lawyer will discuss what you might recover in damages and the attorney fees you may have to pay to pursue those damages.

Attorney's Fees

A big factor for most people when considering a legal action is how much they will have to pay a lawyer. Ask the lawyer for an estimate of fees for each option. And, ask what fee structures the lawyer can offer you. For example, will the lawyer take a case on a contingent (percentage of recovery) fee basis? Will the lawyer agree to a limited services retainer (for example, only guidance through the state agency claim filing procedure) if they want an hourly fee? By discussing all of the fee arrangements available, you can include that cost into your overall analysis of whether or not to pursue your unpaid wage claim.

Litigation Costs

In addition to attorney's fees, you may have to pay costs related to a lawsuit or other legal action. These costs can include filing fees, deposition costs, expert witness fees, and so on. Ask the lawyer to give you a run-down of these costs, too.

Consult an Employment Lawyer

It's worth the time and money to sit down with an attorney and get a full assessment of your potential legal claims, the avenues of recovery, the damages you can recover, and the fees and costs you will pay to pursue a claim. Only by doing this in-depth analysis can you decide if you want to hire a lawyer to actually take your employer on. Keep in mind: Your employer will certainly have the benefit of legal counsel; you should have legal advice, too.