Labor and Employment

How Long Do I Have to File a Lawsuit for Unpaid Wages?

By Sachi Barreiro, Attorney, University of San Francisco School of Law
You may lose your right to collect unpaid wages if you wait too long to file a lawsuit.

Most employees in the U.S. are protected by federal wage laws, state wage laws, or both. If you believe your employer has violated wage and hour laws—for example by failing to pay you minimum wage or overtime—you can file a lawsuit to recover your unpaid wages. However, you only have a limited amount of time to file your suit. In legal terms, this time limit is called the “statute of limitations.”

Time to File Under Federal Law

Under the Fair Labor Standards Act (FLSA), you must typically file your lawsuit within two years of the date of your employer’s wage violation. If the wage violation is ongoing, you will only be allowed to recover unpaid wages for the two years prior to filing your claim. For example, suppose you are claiming that your employer has failed to pay you minimum wage since January 1, 2013. If you wait until June 1, 2016 to file your lawsuit, you will only be allowed to seek unpaid wages from June 1, 2014 to June 1, 2016.

The statute of limitations is extended to three years if your employer’s violation of the FLSA was willful. An FLSA violation is considered to be willful if the employer knew that its conduct was prohibited by the FLSA or showed reckless disregard as to whether its conduct was prohibited by the FLSA.

Time to File Under State Law

Most states have their own wage and hour laws with their own time limits for filing a wage lawsuit. The time limits may vary depending on what type of wage violation your employer committed. For example, in New Jersey, the time limit is two years for minimum wage and overtime violations and six years for all other wage violations. In California, most wage violations are subject to a three-year statute of limitations.

Wage Claim Versus Lawsuit

For violations of the FLSA, you can file a wage claim with the U.S. Department of Labor’s Wage and Hour Division. However, you should file your claim well before the two-year statute of limitations expires. That way, you will still have enough time to file a lawsuit if you are not able to resolve your claim through the Department of Labor’s administrative process.

In many states, you can also file a wage claim with your state department of labor. However, some states have different time limits for filing a wage claim. For example, in Delaware, you must file your wage claim at least 90 days before the statute of limitations on your wage claim is set to expire. And, some states only accept wage claims under a certain amount. For example, in New Jersey, you can only file a wage claim worth $30,000 or less.

Consult With a Lawyer

If you are owed unpaid pages, you may want to consult with an employment lawyer. A lawyer can identify all of the wage laws that your employer has violated, some of which you may not even be aware of. A lawyer can also help you file a wage claim or lawsuit well before any applicable deadlines, to ensure that both your federal and state law claims are preserved. (For more information, see Unpaid Wages: Do You Need a Lawyer?)

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