Ten Things About Wage Claims That All Workers Should Know
This information last reviewed:
THE NEW JERSEY minimum wage is $8.38 per hour and will increase to $8.44 per hour in 2017. For overtime hours, you are entitled to an overtime rate of time and a half for hours over 40. For example, if you earn minimum wage in 2017, every hour worked over 40 hours must be compensated at a rate of $12.66, unless you are in an exempt position. Exempt categories include executive and professionally trained workers, as well as outside sales people. Such exemptions should be applied very narrowly, however. You should contact Legal Services if you have any questions about whether you are entitled to overtime pay.If you think you have been underpaid for your work, this article lists 10 things you should know!
- You can file a wage claim for wages in past years. It can be scary to raise a wage concern while you are still working. The good news is that wage law allows you to go back two years for minimum wage and overtime violations—three years if there was a willful violation by the employer. For non-payment of promised wages, you can go back six years. The law also protects you from retaliation if you file a complaint or talk with others about wages and working conditions.
- There is more than one way to file a wage claim. Filing a complaint can be either formal or informal. For small claims, you can file on your own at the New Jersey Department of Labor. The complaint form is on the New Jersey Department of Labor Wage & Hour page. In that process, you can get a hearing with the agency. You can also get an attorney and file in either state or federal court. You can contact Legal Services for advice on the best approach for you or to see if you are eligible for help.
- You can file a claim even if you do not have an exact record of hours worked. Legally, it is the employer’s responsibility to keep a record of the hours worked. If an exact record does not exist, a reasonable estimate from you of hours worked is enough to bring a claim. The U.S. Supreme Court has made it clear that in cases where records are not kept, the burden of proof rests with the employer to show that your reasonable testimony about the hours you worked is incorrect.
- Larger employers cannot hide behind subcontractors in wage claims. Sometimes an employer will use a subcontractor or multiple corporations to try to hide from collection activity for unpaid wages. Sometimes a contractor is used to shield another employer with more assets from liability. The good news is that individual owners, managers, and corporate officers can be held responsible for wage non-payment. If the business moved or changed its name, and the owner is operating a new business, you can still file a claim against that individual owner, even if the corporate business is no longer in existence. Also, you can include both the subcontractor who didn’t pay your proper wages and the larger employer they depend on in your wage claim.
- Sometimes salaried employees are entitled to overtime pay. Just because you are being paid a salary does not mean that you are exempt from overtime and minimum wage requirements. If you are doing the primary work of the business, and management is not a primary duty, you may be entitled to time and a half for hours over forty hours. It is a good idea to keep track of your hours worked, even if your employer is paying you by salary or a task rate.
- Employers cannot avoid wage laws just by calling you an independent contractor. Just because your employer says you are an independent contractor does not make it so, even if you signed a contract or form that states that. If you are supervised, or do not have an independent business, you are probably an employee. Under a test called the “ABC test”, you may be considered an employee by the court even if you signed an agreement that you are an independent contractor. This is important because the rights of employees are different from the rights of contractors. Employees are entitled to minimum and overtime wages, unemployment benefits, and workers compensation.
- You can also ask for money for damages and attorney’s fees. Under federal law, when an employer has violated wage law, you can get your unpaid wages, plus an equal amount in damages. The law also states that the employer has to pay your attorney’s fees if the law is being violated.
- Just because you don’t get paid hourly doesn’t mean you are not entitled to overtime pay. Workers are often paid on commissions, piece rates, and task rates, and these workers are usually entitled to minimum wage and overtime wages as well. Just because you aren’t paid on an hourly basis, does not mean you are not entitled to overtime.
- Undocumented workers are entitled to the same protections as all other workers. Wage law protects all workers, regardless of status in the United States—and rightly so. Lack of protection for immigrant workers would just give unscrupulous employers more incentives to hire workers who can be abused. So regardless of status, both citizen and undocumented workers can go forward with wage claims.
- Help is available. The Workers Legal Rights Project at LSNJ has experts in wage, employment, and unemployment law who can advise and represent you in wage and unemployment areas. For more information or to see if you are eligible for services, you may complete an online intake or call our statewide, toll-free legal hotline at 1-888-LSNJ-LAW (1-888-576-5529).