Federal and Delaware law regulate when and how much employees must be paid. If your employer has not paid you all the wages you are owed in a timely fashion, you may be entitled to recover not only your unpaid compensation, but also penalties intended to punish your employer for wage penalties.
Employees must be paid at least the minimum wage for each hour they work. You are entitled to be paid the highest applicable minimum wage where you work, whether that’s the federal, state, or local rate. The minimum wage in Delaware is $7.75 until June 1, 2015, when it increases to $8.25. Delaware employees are entitled to the state minimum wage because it is higher than the federal minimum wage of $7.25.
To calculate your unpaid minimum wage claim, simply take the difference between what you were actually paid per hour and what you should have been paid per hour, and then multiply that amount by the total number of hours you worked. For example, if your employer improperly paid you the federal minimum wage rather than the state minimum for your first two weeks of full-time work in July, you would be entitled to an additional $1 an hour ($8.25−$7.25) for each of your 80 hours of work, for a total of $80.
If you receive tips at your job, your employer can pay you an hourly wage of $2.23, as long as you earn enough in tips to bring your pay up to the state minimum wage. To learn more, see Delaware Laws for Tipped Employees.
Failing to pay employees properly for overtime work is one of the most common wage violations by employers. In Delaware, employees are entitled to overtime if they work more than 40 hours in a workweek.
Not all employees are entitled to earn overtime. While hourly, nonexempt employees have a right to overtime, other categories of employees are exempt. The most common exemptions are for outside salespeople and “white-collar” employees who do professional, managerial, and high-level administrative work (see our overtime page for more details and other exemption categories). Unless your employer can prove that you fit into one of these narrow exemptions, you are entitled to overtime.
If your employer has failed to pay you for overtime hours, your unpaid wages are the difference between what you should have been paid and what you were paid. For overtime hours, employees are entitled to time-and-a-half. In other words, you’re owed an extra 50% of your hourly rate, on top of your regular pay. For example, if you are usually paid $10 an hour, you should be paid $15 an hour for overtime work.
Example: June usually earns $12 an hour. She worked ten hours each on Monday and Tuesday, and eight hours each on Wednesday, Thursday, and Friday. Because she worked 44 hours in the week, she is entitled to overtime pay – $18 rather than $12 – for four hours of work, for a total of $72.
Federal law doesn’t give employees the right to take meal or rest breaks during the workday. However, if your employer lets you take breaks, you may be entitled to pay for that time. You are entitled to be paid your regular wages for:
Delaware gives employees the right to a 30-minute unpaid meal break if they work at least seven and a half consecutive hours. The break must take place after the first two hours of work and before the last two hours of work.
If you aren’t paid for shorter rest breaks or you’re forced to work through your meal period, you are entitled to payment for that time. To calculate your unpaid break wages, add up this time and multiply it by your hourly rate. And don’t forget overtime: Breaks for which you should have been paid count as hours worked, which means they may push your total hours for the week above 40 per week.
In addition to collecting unpaid wages, employees have the right to collect penalties if they win their administrative claims or lawsuits. Below are some of the most common penalties available to employees; additional penalties may be available under state or local law.
In Delaware, when employees separate from employment, employers must give them their final paychecks on the next regularly scheduled payday. If you don’t receive your final paycheck on time, you can collect liquidated damages: a sum of money to compensate you for the delay. You can collect 10% of the unpaid wages for each day that your employer is late (except Sundays and holidays). The maximum penalty is the full amount of your unpaid wages. For example, if your employer is three days late with your final paycheck of $2,000, you can collect $600 on top of the actual wages you are owed.
In addition, federal law gives employees the right to collect liquidated damages for violations of the minimum wage and overtime laws. If your employer has failed to pay you minimum wage or overtime, you can ask for liquidated damages in an amount equal to the wages you should have been paid. In effect, this means you may be awarded twice the amount of wages your employer failed to pay you.
If your employer failed to pay you all of the wages you earned, you may be able to file a wage claim with the Delaware Labor Department. The Delaware Labor Department has posted its Wage Claim Form online. To file a wage claim, your total claim must be $15,000 or less. If your claim is worth more than $15,000, your only option is to file a lawsuit.
If you aren’t comfortable filing a claim on your own behalf, or you have a large or complex wage claim, talk to an experienced Delaware wage and hour lawyer about representing you. A lawyer can file a wage claim on your behalf or file a lawsuit in court. If you win, your attorney can ask the judge to make your employer pay your attorneys’ fees.
Whether you plan to file a wage claim or hire an attorney to represent you, you should move quickly. In Delaware, you have only one year from the date you should have been paid to file your lawsuit. If you plan to file a wage claim, it must be filed at least 90 days before the one-year time limit is up. For violations of federal wage laws, the time limit is two years (or, if the employer's violations were willful, three years). A lawyer can also tell you if you have any other claims, such as a breach of contract claim, to which different time limits typically apply.