Wage theft is an ongoing problem in Florida. The problem worsened during the pandemic, as agencies tasked with protecting employees relaxed their enforcement efforts in a misguided attempt to give employers “a break” in a difficult time.

Wage theft occurs when an employer fails to pay minimum wage or cheats employees out of overtime wages that the law requires the employer to pay. Employees who are victimized by wage theft can pursue a remedy by making a complaint to the federal government or by seeking the assistance of an employment attorney. History shows that employees are often better served when they are represented by a private employment lawyer.

How Employers Violate the FLSA

The Fair Labor Standards Act (FLSA) requires almost all employers in the United States to pay a minimum wage to their employees. With the exception of some exempt employees, the FLSA also requires employers to pay overtime when an employee works more than 40 hours in a workweek.

Employers violate the FLSA in a variety of ways. Some employers require employees to “clock out” at the end of their shift and to finish their work after the shift ends. An employer that does not pay for lunch breaks violates the FLSA by requiring an employee to answer the telephone while eating lunch. Restaurants are notorious for disregarding rules that govern “tip pools” in order to cheat their employees out of minimum wage payments.

Some employers ignore overtime requirements and pay the same hourly wage for all hours that an employee works. Some employers improperly “shave” overtime hours by rounding hours down to the nearest quarter hour while never rounding hours up.

Employers often tell an employee that they are exempt from overtime requirements because they are paid a salary, even when the employee’s position does not qualify as exempt. Employers also misclassify workers as independent contractors to avoid paying minimum wage and all the other benefits that come with employment, including contributing the employer’s share of FICA taxes.

Options for Vindicating FLSA Violations

Workers who have been cheated out of wages by an employer’s violation of the FLSA can file a complaint with the U.S. Department of Labor (DOL). The Wage and Hour Division of the DOL is responsible for investigating complaints of noncompliance with the FLSA. The DOL also has the power to take legal action to enforce the FLSA.

Unfortunately, the DOL’s resources are limited. The DOL is most likely to conduct a full investigation when it believes a large employer is systematically cheating a substantial number of employees out of their wages. Even then, the DOL investigation may be slow or incomplete, simply because DOL doesn’t have all the employees it needs to investigate complaints of wage violations.

The problem of lax enforcement was compounded during the pandemic. President Trump issued an executive order directing federal agencies to ease up on enforcement efforts against businesses that claimed to be making efforts to follow regulations. At the same time, the DOL made confusing changes to the “guidances” that help businesses understand and comply with regulations. Businesses saw those changes as an excuse to violate the FLSA. In many cases, the DOL decided that the executive order prevented it from pursuing immediate enforcement actions against those businesses.

Even before the pandemic, a General Accounting Office investigation determined that “the Department of Labor is failing to adequately prevent or punish wage theft” and that “that the problem of wage theft is only getting worse because of weaker enforcement.” The DOL was criticized during congressional hearings for repeatedly “dropping the ball” during investigations of wage theft.

Private Enforcement of the FLSA



Employees who are victimized by wage theft are not required to file a complaint with the DOL. They can instead elect to ask a private employment lawyer for help.

An employment lawyer will evaluate the facts, review the employee’s pay stubs, and decide whether the evidence supports a claim for an FLSA violation. Depending on the circumstances, the lawyer might contact the employer to discuss an informal settlement of the claim. The lawyer might instead move forward immediately with a lawsuit to vindicate the employee’s rights.

The remedies that a lawsuit will seek include all of unpaid wages that the employee should have received. In most cases, employees are entitled to an equal amount to punish the employer for its violation of the law. In other words, employees usually receive twice their back pay as a remedy for an FLSA violation.

The FLSA requires an employer to pay the legal fees of an employee who prevails in making a wage claim. If a private employment lawyer is willing to represent a client seeking unpaid wages, there is no financial benefit in making a complaint to the DOL rather than hiring a private lawyer.

The FLSA also prohibits employers from retaliating against employees who hire a lawyer to pursue a claim for an FLSA violation. Using a private lawyer to make a claim for unpaid wages is conduct that the FLSA protects. Firing or taking other retaliatory action against an employee for pursuing an FLSA claim is against the law. Employees can pursue additional legal remedies when they are victimized by retaliation.

Unlike the understaffed and overworked DOL, a private employment lawyer will only take a case if the lawyer has time to pursue it diligently. Private lawyers believe in the cases that they accept. They represent clients with wage claims when they are confident that the outcome will be favorable. Private lawyers are in a position to provide personalized, responsive legal services to employees who have been cheated out of wages. In most cases, it makes sense to seek legal advice from a private employment lawyer before making a complaint about unpaid wages to the DOL.