Labor and Employment

Back Pay under the FLSA

The Fair Labor Standards Act (FLSA) sets minimum wage, overtime pay, recordkeeping and youth employment standards for employment subject to its provisions. Unless exempt, covered employees must be paid at least the minimum wage and not less than one and one-half times their regular rates of pay for overtime hours worked.

A common remedy for wage violations is an order that the employer make up the difference between what the employee was paid and the amount he or she should have been paid. The amount of this sum is often referred to as "back pay."

Methods for Recovering Back Pay

Listed below are methods which the FLSA provides for recovering unpaid minimum and/or overtime wages.

  • The Wage and Hour Division of the U.S. Department of Labor may supervise payment of back wages.
  • The U.S. Secretary of Labor may bring suit for back wages and an equal amount as liquidated damages. Liquidated damages, when awarded, are equal to the amount of unpaid wages recovered. Therefore, an award of liquidated damages gives double back pay to the employee.
  • An employee may file a private suit for back pay and an equal amount as liquidated damages, plus attorney's fees and court costs.
  • The Secretary of Labor may obtain an injunction to restrain any person from violating the FLSA, including the unlawful withholding of proper minimum wage and overtime pay.

An employee may not bring lawsuit under the FLSA if he or she has been paid back wages under the supervision of the Wage and Hour Division or if the Secretary of Labor has already filed suit to recover the wages.

The Department of Labor may recover back wages either administratively or through court action, for the employees that have been underpaid in violation of the law. Violations may result in civil or criminal action. Civil money penalties of up to $11,000 per violation may be assessed against employers who violate the youth employment provisions of the law and up to $1,100 per violation against employers who willfully or repeatedly violate the minimum wage or overtime pay provisions. This law prohibits discriminating against or discharging workers who file a complaint or participate in any proceedings under the FLSA.

Statute of Limitations

A two-year statute of limitations, which means the time limit allowed for an employee to file a claim, applies to the recovery of back pay, except in the case of a willful violation, in which case a three-year limit applies. In other words, unless the violations are willful, back wages may only be recovered within two years of when the violations occurred.

Questions for Your Attorney

  • How do I file an FLSA lawsuit?
  • If I file an FLSA lawsuit and win, what can I recover?
  • How long will the FLSA lawsuit take?
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