The Fair Labor Standards Act (FLSA) requires employers to pay minimum wage to nearly all employees and overtime to nonexempt employees. When employers fail to pay the wages required by law, employees can sue for unpaid wages.

Employees might fear that hiring a lawyer to collect unpaid wages will cost more than the wages they collect. Fortunately, Congress anticipated that fear when it enacted the FLSA. Federal law requires the employer to pay the reasonable legal fees that an employee incurs to remedy a violation of the FLSA.

Some cases of unpaid wages do not involve minimum wage or overtime. They involve withheld paychecks or the failure to pay promised compensation, such as a commission or bonus. In those cases, a Florida statute also shifts the burden to the employer to pay fees to an employee who prevails in a legal action to collect those wages.

FLSA Wage Requirements

Florida employers violate the FLSA minimum wage requirement in a variety of ways. Examples include:

• Requiring employees to keep working after they clock out.
• Requiring employees to perform different work, such as cleaning the premises, after they clock out.
• Requiring employees to work through lunch without paying them for the lunch period.
• Taking a “tip credit” from the wages of employees who are not tipped.
• Taking a “tip credit” from the wages of tipped employees for work that is separate from their tipped work.
• Improperly classifying an employee as an independent contractor.

The FLSA requires employers to pay “time-and-a-half” for hours above 40 that a nonexempt employee works in a workweek. Nearly all employees who are paid by the hour are nonexempt employees. Salaried employees are nonexempt unless they meet strict criteria that determine whether an exemption applies. Examples of overtime violations by Florida employers include:

• Misclassifying nonexempt employees as exempt.
• Paying the regular hourly wage for all hours work without paying extra for overtime.
• “Shaving” overtime hours by consistently rounding down but never rounding up when computing overtime payments.
• Basing overtime wages on a pay rate that does not take account of all earnings.
• Making employees work through lunch and not counting the hours as overtime.
• Not paying overtime for work that employees do at home.
• Not paying overtime for job-related travel.
• Not paying overtime for time spent performing required tasks (such as donning gear) before work starts.
• Not paying overtime for on-call hours when the employee is not free to pursue his or her own activities.

Employers are liable for back wages when they violate minimum wage and overtime laws. They are usually liable for a penalty that equals back wages.

Attorney’s Fees for Wage Violations

Some wage violations are sizeable, particularly when a wage theft victim brings a claim on behalf of co-workers who were cheated in the same way. In some cases, however, back wages reflect a violation that only lasted for a few weeks before the cheated employee quit or was discharged. Some employees worry that the expense of hiring an attorney will exceed the award of back wages.

The FLSA requires employers to pay the reasonable attorney’s fee incurred by an employee who prevails in a claim for back wages caused by FLSA violations. In almost all cases, the court has no choice but to award fees to an employee who brings a successful FLSA lawsuit against an employer.

In Florida, a state law allows employees to recover attorney’s fees when they make a successful claim for unpaid wages. Florida employment attorneys usually rely on state law when an unpaid wage claim is not based on the FLSA. While state law gives judges more discretion to award fees than federal law, most state judges are willing to award reasonable fees to employees who prevail in lawsuit for unpaid compensation.

Since attorneys know that the employer will probably be required to pay a client’s reasonable legal fee if the client prevails in court, employment lawyers usually take cases for unpaid wages on a contingent basis. That means they don’t earn a fee unless they obtain a recovery.

The terms of a contingent fee agreement may depend on the nature of the case. The fee might be a percentage of the recovery, it might be the amount paid by the employer, or it might be some combination of the two, depending on whether a fee is awarded by the court or a settlement is reached before or after filing lawsuit. In any event, the employee will not need to worry about paying the attorney more than the attorney recovers.

An employment lawyer will explain the fee structure in detail before a wage theft victim decides whether to retain the attorney. Employees who believe they were cheated out of wages should not be afraid to call an employment lawyer for advice.