Fear is the biggest factor that holds many H-1B workers back from approaching their employer (or former employer), and asking for their underpaid wages, or from taking legal action.

H-1B workers do in fact have several options and legal rights. Some of those rights are very powerful.

However, those rights will not do you any good unless you are willing to pursue them. To fight to enforce your rights. To make educated and bold decisions, and stick to them. To know that, in order to achieve what you want to, you will have to take on some risks.

A fraudulent H-1B employer has many more risks than an underpaid H-1B worker does. Many H-1B employers would be willing to discuss an amicable settlement with an underpaid H-1B worker rather than deal with a legal action, and face the potentially severe liabilities. Yet the employers don’t seem to worry nearly as much as do the H-1B employees.

If you are an H-1B worker, and are too fearful to talk to your employer about unpaid wages, I can understand where you’re coming from, and I could never judge you for feeling that way.

However, I do ask that you not contact me, asking me to spend hours of time discussing legal rights that you know you’d never pursue anyway, because of your fears. Only if it’s possible you could commit to assuming some risks and pursuing your rights could an attorney possibly help you.

If you don’t take action, you may well face risks (e.g. an employer’s underpayments could be hurting your immigration status). If you do take action, you may well face risks (e.g. the employer may threaten deportation). You’ve got to deal with your situation.

In dealing with your situation: (1) don’t let fear control you; (2) know the risks are there, and that you must deal with them; (3) educate yourself about your legal rights and options; (4) learn what options present the lowest risks and highest potential benefits; (5) make an educated decision; and (6) don’t second-guess yourself. Only if you are willing to overcome your fear and accept risks would you have any chance to obtain what you’re owed, and to improve your immigration status and options.

Additional Information

For more H-1B employee rights information, please visit the blog www.h1blegalrights.com.

To learn more about H-1B rights and options, please see these posts:

• “Employee Tip: If You’re an H-1B Worker Being Underpaid Wages, Consider These Things”
• “5 Reasons Why an H-1B Employer Would Want to Reach Settlement With An Underpaid Employee”
• “H-1B Workers’ Fears vs. Fighting for Your Rights”
• “FAQS- If You Were Underpaid as an H-1B Worker and Are No Longer in the U.S.”

For information about H-1B Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Attorney Michael Brown or the law firm of Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

Technorati Profile

h-1b-fraud
h-1b-wages
h-1b-pay
h-1b-salary
h1b-fraud
h1b-wages
h1b-pay
h1b-salary

If you were underpaid as an H-1B, and are now outside the U.S., below are some frequently asked questions and answers.

#1: Can I bring a legal claim in the U.S. against my former employer, when I no longer live in the U.S.?

Probably yes. There are cases in several areas of U.S. law where non-citizens are allowed to pursue legal action against a U.S. citizen or U.S. entity (e.g. their former U.S. employer). As a non-citizen, you probably have “standing” to bring a U.S. legal claim when that claim is based on events that occurred while you were working in H-1B status.

#2: It has been several years since I left my underpaying H-1B employer and left the U.S.- is it too late to file a legal claim? What are the deadlines?

If your wages were underpaid sometime within the last four (4) years, you still have time to consider taking legal action against your former employer.

There are several deadlines that may apply to your situation, ranging from one (1) to four (4) years or possibly longer.

The Department of Labor (DOL) has a one (1)- year deadline for filing a complaint for being paid under the prevailing wage.

Even when the DOL deadline has passed, there are other laws that may apply to your situation that have longer deadlines. For example, State wage laws often have two (2)- year or three (3)- year deadlines. Some State and Federal fraud laws have longer deadlines-one important federal fraud law that applies to underpaid H-1B wages has a deadline of four (4) years. Some applicable laws’ deadlines may be even longer.

#3: What makes a legal claim “good” or worth pursuing?

These are the most important factors that are likely to make a legal claim “good:”

• Your deadline hasn’t passed.

That is, at least some of your underpaid wages occurred within the last four (4) years.

• The amount of your underpaid wages is significant, i.e. tens of thousands of U.S. dollars or more.

If you were only underpaid a few weeks’ wages, then a legal action is probably not worthwhile for you to pursue.

If you lost a significant amount of wages, tens of thousands of dollars or more, then there is more you would stand to gain from a legal action.

Also, the greater the amount of lost wages, the more likely it is that an attorney would represent you on a contingency basis instead of requiring fees in advance. (Under a contingency arrangement, you do not have to pay your attorney out-of-pocket legal fees. Fees are only paid by the employer if you obtain a settlement or legal award. For more information on this subject, please see Question #7 below).

• You have LCA and pay stub documentation proving you were underpaid.

It will help your legal claim a great deal if you have copies of: (1) your Labor Certification Application (LCA) or other documents that prove what your prevailing wage was; and (2) pay stubs or other documents that prove your H-1B employer paid you less than the prevailing wage.

If you do not have these documents, you can still pursue your claim. Having these documents, however, makes a claim easier to prove and pursue.

#4 Will I have to file a legal complaint for my matter, or is it possible I can reach an agreement (settlement) with the employer without having to pursue a lawsuit?

Often, an H-1B worker will be able to reach a settlement with the employer without having to file a legal complaint. It is often in the employer’s best interests to reach a settlement rather than face the costs and risks of litigation. Employers often stand to lose a lot of money- if they lose a judgment, they may have to pay for your unpaid wages, pay additional penalty monies, and pay their own attorney fees and legal expenses. Thus, it is often in the employer’s best financial interest to reach a reasonable settlement with its former H-1B worker, before a legal complaint is filed.

If a legal complaint is filed, it is still possible that a settlement can be reached in the earlier stages of litigation, before the parties have spent a significant amount of money on litigation.

#5 If I pursued my unpaid wages from my former H-1B employer, would I have to travel to the U.S.?

Chances are you would not have to travel to the U.S. As mentioned above, there is a good chance you could reach a settlement with your employer before filing a legal complaint. If a legal complaint is not filed, there is no requirement that you travel.

If you cannot reach a settlement with the employer and you decide to file a legal complaint, then after the complaint is filed you could be required to travel to the U.S. As part of litigation, there are two potential occasions you may have to travel: You could be required to attend a deposition in the U.S., and you could be required to testify at trial. However, many cases in litigation are resolved before these occasions (a deposition or a trial) arise. In addition, if a deposition is necessary, it is possible the court will permit a video deposition so that you do not need to travel to the United States.

The bottom line is this: (1) the chances are good you could settle your unpaid wage matter without having to travel to the U.S.; (2) if you don’t settle your matter before litigation, you have a choice of filing a complaint (and possibly commit yourself to traveling) or not filing a complaint; and (3) if you file a complaint, your legal case may still be resolved without you having to travel to the U.S.

#6 If I have to travel to the United States for litigation, do I need a visa?

What if you do wind up filing a legal complaint and you do reach the point you are required to travel to the U.S. and attend a deposition or trial? Would you be legally-allowed to travel to the U.S.?

Visa regulations specifically allow foreign nationals to come to the United States on a tourist/business visa for litigation purposes. Therefore, if you are eligible for the Visa Waiver Program, you may enter the United States under that program and stay up to 3 months. Otherwise, you will need to obtain a regular tourist visa from the U.S. consulate in your country if you do not already have one.

If you are subject to a bar to re-entry because you significantly overstayed your last visa, engaged in unauthorized work, or are otherwise inadmissible to the United States, you may qualify for a non-immigrant visa waiver of inadmissibility. If these circumstances apply to you, you should consult with an attorney to discuss your options.

#7 If I hire an attorney to help pursue my unpaid wages from my former H-1B employer, how much would that cost me?

If you retained an attorney for your matter (the attorney must be someone licensed in the U.S.), there are several types of fee arrangements, some of which don’t require you to pay anything unless you win.

Some U.S. attorneys will represent H-1B workers with unpaid wages on a “contingency” basis.

If the attorney will work on contingency, that means you do not have to pay the attorney anything out of your pocket. The attorney is only paid if you settle or win your case. When you win your case, the H-1B employer will pay a percentage of your settlement or judgment (traditionally 33 1/3%) to your attorney for legal fees.

There are other types of legal fee arrangements where you do have to pay out of pocket legal fees. For example, many attorneys charge hourly legal fees, usually ranging between $150/hour to $300/hour (rates may be higher or lower depending on the locale and other factors). This hourly type of fee arrangement will require that you pay out-of-pocket money to your attorney, and you will get a regular bill from the attorney.

An hourly fee arrangement is ethical and common, and it could turn out to be a better financial deal for you in the long run than a contingency arrangement. However, the disadvantage of hourly fees is that these hours can add up quickly and become very expensive for you. In a short time (a matter of a few weeks or months), you could be charged thousands of dollars in hourly fees. If you pay hourly fees for long-term litigation, you could easily incur tens of thousands of dollars in hourly fees.

If you retain an attorney on an hourly basis, you should ask that attorney for a detailed budget and estimates of what you can expect to pay throughout the litigation process.

As you can see, one important issue to consider when you hire an attorney is whether that attorney will have a contingency fee arrangement or a different arrangement that requires you to pay out-of-pocket legal fees (like hourly billing).

Another important factor to consider when hiring an attorney is whether that attorney is experienced in dealing with H-1B wage issues, immigration issues, and employment disputes and litigation.

There is a blog post here (Important Questions to Ask When Hiring an Attorney), which details many important factors to consider when retaining an attorney.

Additional Information

For more H-1B employee rights information, please visit the blog www.h1blegalrights.com.

To learn more about H-1B rights and options, please see these posts:

• “Employee Tip: If You’re an H-1B Worker Being Underpaid Wages, Consider These Things”
• “5 Reasons Why an H-1B Employer Would Want to Reach Settlement With An Underpaid Employee”
• “H-1B Workers’ Fears vs. Fighting for Your Rights”
• “FAQS- If You Were Underpaid as an H-1B Worker and Are No Longer in the U.S.”

For information about H-1B Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

This post was jointly authored by Employee Rights Attorney Michael Brown of the law firm of Peterson, Berk & Cross, and Immigration Attorney Vonda K. Vandaveer of the law firm V.K. Vandaveer, P.L.L.C. Attorney Vandaveer authors the blog U.S. Business and Immigration Law.

DISCLAIMER: The information in this article is NOT legal advice, nor does it establish an attorney-client relationship between you and the attorneys or law firms above. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

Technorati Profile

h-1b-fraud
h-1b-wages
h-1b-pay
h-1b-salary
h1b-fraud
h1b-wages
h1b-pay
h1b-salary

If you are an H-1B professional worker who is being underpaid wages, please know that you have legal rights. The information below describes your rights as an H-1B professional, and factors and options you should consider before taking legal action or pursuing your wages. (Please note this post does not provide legal advice- if you want legal advice, you should contact an attorney who is experienced with H-1B wage matters and talk with the attorney about your specific circumstances).

• Before you complain to the employer or file a legal complaint, consider what deadlines (statutes of limitations) are involved.

If you think you may bring a legal challenge against your H-1B sponsor employer because they have not paid your full wages or have otherwise treated you unfairly, please know that several deadlines (or “statutes of limitations”) apply to your matter.

First of all, if you are considering a wage complaint with the Department of Labor (DOL), there is a one-year deadline for filing such a complaint. A DOL complaint (as discussed more below) may not necessarily be your best or strongest claim, but because it is among your options it is important to take the one-year deadline into account.

You may have the option to file a civil wage claim in court, and several such wage claims have two-year deadlines. If, for instance, you filed a civil complaint on January 1, 2009 that included such a wage claim, you could only pursue the wage claim to recover unpaid wages dating back to January 1, 2007.

There may be other claims available to you that have longer deadline periods. Certain fraud claims may apply to your situation (separate from or in addition to wage claims as mentioned above), and such fraud claims may have deadlines up to four years or more.

The bottom line is this: (1) be aware that deadlines apply to your matter; (2) as soon as possible, you should learn about all the applicable deadlines, and your legal rights and options; and (3) make plans in light of those deadlines and options.

This does not mean that you immediately have to complain to your employer about unpaid wages, or take immediate legal action against your employer. For example, an H-1B employee may decide to delay legal action (and accept some losses of potential legal damages under statutes of limitations), because in the overall picture it is better the employee find a new employer and make an H-1B transfer to a new employer-sponsor before pursuing a legal action. Waiting a set amount of time may well be the best option under your particular circumstances. But it is never too early to learn about all your potential options and deadlines, so you can know the risks, make informed decisions and take well-timed actions from day one.

To learn more about the legal rights and deadlines that apply to your situation, you can consult with an H-1B employee rights attorney. Many attorneys (including me) offer free phone consultations to discuss an employee’s specific circumstances, deadlines and options.

• Consider the risk of retaliation, and any risks to your immigration status, before you challenge the employer’s underpayment of wages.

If your employer is not paying you the wages you were promised, then several laws may be violated, as is described below. Further, if your employer retaliates against you because you complained about unpaid wages, there are laws that prohibit retaliation as well.

However, just because a law exists (e.g. a law that prohibits retaliation, or a law that prohibits driving through a red light) doesn’t mean that people will obey that law (some people still run red lights, and some employers still retaliate against workers for making complaints about unpaid wages).

Before you complain about your unpaid wages, you should evaluate whether the employer may retaliate, and you should make sure you are in a secure position under immigration law (e.g. at a new job, with your H-1B lawfully transferred).

If you are considering a complaint against your current employer, consider how your employer may react, and how strong the risk of retaliation is. If the risk of retaliation is high (e.g. if the employer has threatened visa workers with job termination and deportation if they make complaints), then you should consider the option of finding a new employer/visa sponsor before you pursue a complaint. After you have transferred to the new employer, you will be in a better position to start a legal action against the underpaying employer.

If you do decide to transfer to a new employer, you should strongly consider consulting with an immigration attorney: that is, an independent immigration attorney who was not retained by the underpaying employer and who does not represent that employer’s interests.

In my review of H-1B workers’ potential wage claims, I work with immigration counsel who is specifically involved to advise the H-1B worker on his or her visa issues and interests. That attorney has no affiliation with the original (underpaying) employer, and is working only in the H-1B employee’s interests. An attorney like this- one who is retained only for your interests- can advise about the legalities of an H-1B transfer to a new employer and other issues, and you don’t have to worry about the attorney owing any duty to your former employer, or having any conflict of interest.

If your wage complaints concern a former employer, and you already transferred your H-1B visa to a new (and hopefully more honest) employer, these are probably better circumstances for a legal action. When you have a new employer and your immigration status is intact, you can pursue your unpaid wages from your former employer with far less risk of retaliation.

The bottom line is this: before you pursue any complaint about an employer, you should consider the big picture and consider any risks of retaliation or risks to your immigration status. An attorney can help you plan and navigate through any such risks, and help you transfer to a new employer before you pursue legal action against the underpaying employer.

• Consider the laws and legal rights that protect H-1B workers.

If your H-1B employer has underpaid you or otherwise treated you unfairly, there are several types of laws that may potentially be violated. The laws include: (1) immigration law and Department of Labor (DOL) regulations (e.g. regulations requiring that the “prevailing wage” be paid to H-1B workers, or regulations requiring that the employer not deduct certain expenses from H-1B workers’ paychecks); (2) federal overtime and minimum wage laws; (3) State wage laws; and (4) various fraud laws.

Here is a link to immigration regulations that address an employer’s obligations to you. These laws include, but are not limited to, the employer’s obligations (1) to pay you the prevailing wage or actual wage; (2) to provide you comparable benefits (health insurance, etc.) as U.S. workers are provided; (3) to not make unfair deductions from your paychecks (e.g. to cover certain visa costs, rent deductions, etc.).

The DOL provides summary information about H-1B employees’ rights at this webpage and this one as well.

As DOL’s web page indicates, H-1B workers can file wage complaintsto DOL – you can find your local DOL contact information here, to learn more about filing a wage complaint.

Please note that the DOL’s authority is limited. For example, while you can submit a complaint to DOL and they can potentially determine that the employer violated certain wage or immigration laws, the DOL does not have authority to consider several other types of claims (e.g. fraud claims, State wage law claims), and cannot award several remedies and damages (monies) that you could pursue with a complaint in court.

This is not to say you should file a complaint in court, or should not file a complaint with DOL. Rather, you should know there are advantages and disadvantages in pursuing a DOL complaint rather than a court complaint. The same is true vice versa.

Again, you can benefit from having an H-1B rights attorney review your circumstances, advise you about various options, and the advantages and disadvantages of each.

• Keep Documentation.

If there is any possibility that in the future you may pursue your unpaid wages or pursue a legal complaint, you must keep documentation. Specifically, you should: (1) save all your immigration documents (Labor Certification Application, employer’s letters to government, etc.); (2) save all your payroll-related documents (paycheck stubs, W-2 forms, copies of timecards, copies of work schedules, copies of employer’s notes and letters about wages, etc.); (3) save copies of employment contracts, memos, letters, emails and any other documents from the employer that relate to your wages, employment status, visa status, discipline, or job termination.

You should also keep a journal. In the journal, you should write down dates, names, and descriptions of important events. For example, your journal should describe: (1) any threats the employer made (e.g. if someone threatened to deport employees who complained about being underpaid, you should write down the name and job title of the person who made this threat, the date the threat was made, and a description of exactly what was said); and (2) any complaints or objections that you made to the employer about unpaid wages or unfair treatment (e.g. on X date, you complained to Manager Y about being underpaid and having unfair deductions from your paycheck). If anything happens during your employment that you feel is unfair or important, you should write down that information in a journal; otherwise, you may forget important details later.

• Consider the various actions you could take.

An H-1B worker who has been underpaid may take one or more of the following actions: (1) research internet information (e.g. DOL’s websites, legal websites and blogs, etc.) about your legal rights and options; (2) contact an H-1B employee rights attorney to discuss your legal rights and options; (3) contact an immigration attorney (other than any attorney your employer secured or who has a conflict of interest with you) to discuss any visa transfer or immigration concerns you may have; (4) contact DOL and/or a State wage-enforcement agency to discuss your legal rights and options; (5) assuming there is no significant risk of retaliation, you could contact the employer (through an attorney or on your own) to try to resolve your matters without legal action; (6) file a legal complaint with DOL or a State wage-enforcement agency; and/or (7) file a legal complaint in federal or state court.

Each of these actions has potential advantages and disadvantages, and an attorney or government adviser could help you clarify your deadlines, options and plans.

If you have felt trapped or taken advantage of, please know there is light at the end of the tunnel. You have legal rights, and potentially strong rights at that. Regardless of whether you pursue your unpaid wages, you should do all you can to ensure you have employment where the employer respects your H-1B rights, and human rights. I wish you the best.

Additional Information

For more H-1B employee rights information, please visit the blog www.h1blegalrights.com.

To learn more about H-1B rights and options, please see these posts:

• “Employee Tip: If You’re an H-1B Worker Being Underpaid Wages, Consider These Things”
• “5 Reasons Why an H-1B Employer Would Want to Reach Settlement With An Underpaid Employee”
• “H-1B Workers’ Fears vs. Fighting for Your Rights”
• “FAQS- If You Were Underpaid as an H-1B Worker and Are No Longer in the U.S.”

For information about H-1B Rights & Immigration Rights Attorneys Michael F. Brown and Vonda K. Vandaveer, please visit here.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Attorney Michael Brown or the law firm of Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

Technorati Profile

h-1b-fraud
h-1b-wages
h-1b-pay
h-1b-salary
h1b-fraud
h1b-wages
h1b-pay
h1b-salary

If you are an employee with concerns about your employer, or you think you may pursue a legal action someday, please know that the documentation you keep is critical.  Do not assume the employer or others will keep important documents and produce them to you later, or will agree with your undocumented recollections of events. 

More about documentation…

1. Keep Documentation/A Journal.

If bad things or important things are happening, document those things.  Keep a Journal.  Each time something bad happens, write down: (1) exactly what happened, or exactly what was said; (2) the date and time it occurred; and (3) the names and titles of the people involved.

2. If You Complain to Management About Something, Do It In Writing.

If you are thinking of making a complaint to management (e.g. about sexual harassment, unpaid wages, etc.), you should weigh the risks of retaliation and consider other factors before going forward with a complaint.  But if you do decide to go ahead and complain, by all means make sure that complaint is not just spoken, and that you create documentation or a recording of what was said. 

If you complain to a manager in person, that is fine, but follow it up with an email recapping what was said.  You should provide management with emails, letters or other written correspondence that documents what your complaints are.  Alternatively, if you are a Wisconsin employee, it is lawful in our State to make a tape recording of a conversation, so long as at least one party to the conversation (i.e. you) knows it is being recorded.

If you do not document or record your complaints and important communications with the employer, you are at high risk of the employer: (1) not recalling exactly what was said; (2) remembering things in a way that is more favorable to them than what actually occurred; or (3) denying you complained at all.  Please do not assume people will remember or own up to your version of events.  Document your version, so there can be no doubt what you communicated. 

3. Save Important Documents.  If your boss sends you a discriminatory email, print and save it.  If the employer sends you a letter about discipline or termination, save it.  If you are being underpaid wages, save your payroll stubs, copies of your time cards, and any other payroll information.   You should save copies of all important documents that may be remotely important to your concerns (unless there is a company policy explicitly prohibiting this).  Err on the side of keeping a document, if it could in any way conceivably be used in a legal action. 

All too often, I speak to prospective clients who lost or threw away material documents that could have helped them immensely.  Their mistake is understandable- in everyday life (where litigation is not an immediate concern), it helps people stay organized to reduce clutter.  But if you are being underpaid wages, your pay stubs are no longer clutter, they are valuable assets.

If you feel there are any potential legal concerns that could arise with your employer, please keep the tips above in mind, and be constantly aware of the value of keeping a journal and documentation.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Attorney Michael Brown or the law firm of Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

For more information about Wisconsin Employee Rights Attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.

Employees who feel wronged by an employer often want to know whether they may have a legal claim worth pursuing, i.e. “Do I have a case?”   This post will identify common attributes of good employee rights cases.  (Please note this post cannot answer whether it is advisable for you to bring a legal claim for your situation: if you are seeking advice about whether to pursue a legal claim, you should talk to an experienced employment law attorney about your specific circumstances).

Generally speaking, an employee rights case is more promising, and more worthwhile to pursue, when several or all of the following factors are present:

• The employee’s matter involves: (1) a loss of wages or benefits; (2) an adverse action (e.g. termination, harassment) taken against the employee; and (3) the adverse action was because of a protected characteristic under discrimination law (e.g. the employee’s disability, age, gender, etc.) OR was because of the employee’s complaints/ “whistleblowing” about unlawful conduct.

Generally speaking, an employee has a better potential legal claim if she has lost wages or benefits due to the employer’s actions.  The wages may have been lost due to the employer’s failure to follow wage law, e.g. if the employer failed to pay overtime wages owed under FLSA overtime law.  Or, wages and benefits may have been lost as a consequence of an employer’s adverse action, such as termination, demotion, etc.   As is described more below, the more monies that are lost, the more sense it makes to try to recover that money and invest time and expense in the legal system.

Another common factor of a good legal claim is that an adverse action was taken by the employer.  Adverse actions include: failure to pay wages, termination, demotion, suspension without pay, failure to hire, harassment, and/or making conditions of employment worse.  The more concrete and definable the adverse action, the better the potential legal claim.  For example, it is relatively easy for an employee to prove an adverse action occurred when his employer fails to pay a specific amount of wages, or when the employer terminates the employee and the employee has lost a specific amount of back pay since the termination.  On the other hand, if the employer’s actions are harder to financially quantify- if, for example, a boss “yells” repeatedly at the employee and reassigns him to a more difficult job that pays the same- that employee may have a basis to make a legal claim, but it’s harder for the employee to support the claim.  This is because for this situation (as compared to a job termination) it’s harder to prove that an adverse action occurred and what the specific financial losses or damages are.  The more concrete the adverse action and lost monies are, the better the potential legal claim.

Most of the clients/employees who I represent have been fired from their jobs, and they are seeking back pay dating back to the employer’s termination decision.  However, I should note that a job termination is not critical for several cases (e.g. unpaid wages, sexual harassment) in which the legal system can award large damages (e.g. thousands of dollars for unpaid wages or emotional distress) whether the employee was fired or not.

If an employee is pursuing a lawsuit contesting a termination (and seeking back pay), it is important there is proof that that termination was motivated by an unlawful basis.  There are two general types of unlawful terminations: (1) terminations based on the employee’s “protected characteristics” under discrimination law (e.g. based on disability, age, race, gender, military status, criminal record, or several other characteristics); OR (2) terminations based on the employee’s complaints/”whistleblowing” about unlawful conduct at work (e.g. the employee complained about the employer’s discrimination in the workplace, or its failures to pay workers’ overtime, or its fraud of shareholders, etc. etc.). 

For an employer’s termination decision to be unlawful, it must be more than merely unfair- it must violate a specific area of discrimination law, or violate a “whistleblowing” law.  Those specific laws are too numerous to run through here- if an employee wishes to pursue a termination-based claim, it is wise to contact an employment attorney (particularly when a free consult is possible) and run through the possible legal claims, if any.  

• The employee is within the legal deadline (statute of limitations).

If an employee is beyond her legal deadline, then her case obviously can’t be pursued no matter how good it is.  For example, an employee in Wisconsin has 300 days from an employer’s discriminatory action (e.g. date of discharge, suspension, harassment, etc.) to file a discrimination complaint.  If the employee is beyond the 300th day after the discriminatory action she wants to contest, then the right to pursue that claim is forever lost.

As another example, several wage claims (e.g. an unpaid overtime claim) have two-year statutes of limitations.  Say an employee wished to pursue overtime wages that he was not paid between January 1, 2005 and June 1, 2006.  If the employee filed a legal complaint for unpaid overtime on May 16, 2008, the employee, because of the two-year statute of limitations, could only pursue wages for the short period between May 16, 2006 and June 1, 2006.  With each day that passed, the value of the employee’s wage claim– no matter how strong the proof– would be increasingly diminished.

Also of note, some types of legal claims have very short statutes of limitations (e.g. OSHA retaliation claim at 30 days, Sarbanes Oxley whistleblower claim at 90 days).

Because of all this, it is important for an employee to evaluate legal claims and deadlines promptly.  Employees who have evaluated their legal claims early can make their legal claims and strategies stronger, and avoid the diminishment of claims and rights.

• The employee has lost (or will lose) a significant amount of wages, income, or other tangible monies.

The legal system is effective at some things (e.g. repaying financial losses) and not effective at others (e.g. “proving a point to the employer”).  Employees who have lost tens of thousands of dollars- for example, employees who were not paid wages owed to them for several months or years, or employees who were unlawfully discharged and out of work/income for several months or years- have tens of thousands of dollars “on the table,” so to speak.  If such an employee wins a legal claim, she will have a significant amount of tangible monies that the legal system can recognize and award to her.

However, all too often an employee will not have significant financial losses or potential damages, yet will rush ahead and file a legal claim.

For example, I commonly get phone calls from employees (prospective clients) in a situation like the following:

- The employee was fired, or otherwise treated adversely, by his employer.

- The employee filed a discrimination complaint with the Wisconsin Equal Rights Division (ERD).

- The employee endured 6-12 months or more of legal proceedings at the ERD.  Along the way, perhaps the employee was offered a financial settlement by the employer (say, $5,000), but the employee felt that amount was too low as compared to the wrongfulness of what the employer did.

- The ERD proceedings become more formal over time, and the employee is required to attend a deposition, or attend a legal hearing, etc.

- The employee calls me, only to hear me say (after his months of effort) that his legal claim has little or no financial value.  I inform the employee that the main financial award the ERD can award is lost back pay- i.e. income and out-of-pocket expenses lost as a result of the employer’s discriminatory actions- and that the employee has noback pay.  For example, if after the employee left the employer he started a new job the next day that paid more, then there is little or nothing that the ERD can award him.  It does not matter how bad the employer’s discrimination was, or how strong the employee’s proof of discrimination is.

These circumstances are counterintuitive for many employees, who understandably (but incorrectly) assume that their ERD case is financially worth more, the worse the discrimination or adverse treatment is.  In reality, the best indicator of an employment law claim’s value is usually the amount of monies an employee has lost. 

Again, if an employee has lost significant monies because of the employer’s actions, he or she has more on the table that can be won in a legal proceeding.  And this of course assumes that the employee has proof of legal violations that makes winning a possibility.

• The employee has strong evidence, i.e. documentation, witness statements and/or recordings that proves the employer’s unlawful conduct (e.g. discrimination, retaliation for wage complaint).

Obviously, the more proof an employee has of the employer’s wrongdoing, the better the odds the employee will win a legal claim or reach a favorable settlement. 

Good proof usually comes in the following forms:

- Documentation (e.g. the employee has copies of emails from her supervisor admitted her wages are underpaid, or making negative comments about her disability);

- Witness Support (e.g. a coworker who witnessed the employee’s termination meeting is willing to testify that the employer terminated the employer on a discriminatory basis, or in retaliation for the employee’s whistleblowing);

- Recordings (e.g. employee has tape-recording of HR manager threatening to fire the employee over his medical restrictions or wage complaint); and

- Suspect timing  or other strong circumstantial evidence (e.g. the employee was fired one week after returning from short term disability leave).

The better quality of proof the employee has, the stronger the potential legal claim.  It is not enough for an employee to be right: the employee must prove she is right and prove the employer violated employment law.

• The employee has proof of fraud or blatant falsifications by the employer (e.g. the employer gives documents to the government stating an employee will be paid $15.00 per hour, and the employee has payroll stubs confirming the employer only paid him $8.00 per hour).

Some employers falsify documents to the government, or commit blatant fraud in which they pay workers at wages that are less than what the employers report to the government.  This can occur with immigrant workers, such as H-1B professionals.

If an employee has copies of documentation that proves an employer committed fraud (e.g. copies of documents the employer gave the government, and copies of payroll stubs showing the employer failed to pay the wage rates stated to the government), an employee may have very strong legal claims in this situation.

• The employer has the financial resources to pay the legal award or settlement.

It is important the employer can pay for its liabilities if the employee wins a legal claim.  In most situations, this is not a concern.  Most employers have the financial resources necessary to pay the legal award an employee seeks.  Most employee litigants are not seeking dollar amounts that would (if awarded) be so large as to put the employer out of business.

However, there are times when an employer’s financial situation is bad, and presents a major obstacle in a case.

For example, I have had employees contact me with matters in which it was as plain as day that their employers violated the law as the employee claimed, but the employers’ companies had dissolved, or the employer’s owner owed large debts to the IRS or to third party vendors, or the employer’s owner had left the country, or the employer’s financial viability and assets were otherwise in question.  These circumstances raise obtacles for legal claims that may or may not be surmountable.

Summary

Generally speaking, the more factors above that are present in an employee’s legal matter, the better the “case” the employee may have.  Again, it must be emphasized that these are not rigid rules, and that every situation is different.  Employees can benefit by keeping the factors above in mind, and considering where their potential claims may fall on the spectrum of good and bad.  Finally, the factors may help employees identify some areas in which further research, or legal advice, may assist with decisions.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Attorney Michael Brown or the law firm of Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

For more information about Wisconsin Employee Rights Attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.  

If you have been underpaid wages, you may want to consider the following.

• Keep copies of your paystubs and pay-related documents.

This is simple but important.  Hold on to your paystubs, as well as any other documents that relate to your pay (e.g. copies of your timecards, employer’s bonus plan, emails about wages, etc.).  With that said, make sure you do not violate any employer policy, e.g. a proprietary information policy that prohibits you from copying/retaining a given document.

• Calculate your unpaid wages.

It is important you estimate how much in wages you are owed.  If you are unsure, you should still come up with at least a ballpark valuation, based on whatever information is available.

• Are the unpaid wages at issue less than $5,000?  If so, you should be mindful about hiring and paying an attorney more than the amount of wages at issue.  If the unpaid wages are greater than $5,000, you should consider contacting an attorney to see if they’ll offer affordable fees or a contingency fee.

In my opinion, an employee with a lower-dollar wage claim (less than $5,000) can usually best handle the issue by filing an agency complaint (e.g. a complaint to the Department of Labor, or to your State’s wage-enforcement agency), and letting that agency investigate your matter, without retaining an attorney.  I say this because when you are dealing with wages of less than $5,000, you could end up paying an attorney more than the amount of unpaid wages at issue.  With that said, every matter is different and there are some exceptions to this general principle (e.g. cases where proof is very good and repayment of attorneys fees very likely to be awarded, cases where multiple employees band together for collective action, etc.). 

If you have a higher amount of lost wages (i.e. much larger than $5,000), the amount you stand to recover better justifies paying an attorney.

Also, if the amount of unpaid wages is significant, many employee wage attorneys (including myself) will work on a contingency basis where you pay no out-of-pocket legal fees.  That is, only if you win or settle your wage claim are legal fees paid, and they are paid as a percentage (typically 1/3) of your award/settlement. 

But if the amount of your unpaid wages is low (e.g. $3,000), the contingency percentage (e.g. $1,000) will probably be far less than the value of an attorney’s legal work.  In other words, lawyers will not want to work on a contingency basis for a lower-value wage claim.  And if an attorney offers to work on an hourly basis (say, $200 per hour), you could end up paying more than the unpaid wages at issue.  That is not in your interest.

Bottom line: the lower the value of your unpaid wages, the more cautious you should be about paying high out-of-pocket legal fees to pursue those wages.  If you have a lower-value wage claim, check what your local agencies can do for you.  If you have a higher-value wage claim, consider calling an attorney to see if they charge affordable and/or contingency fees that make sense in light of the larger value of unpaid wages you stand to gain.

• Be aware of legal deadlines (statutes of limitations), which are often two (2) years- they come up quick.

Several wage laws have a 2-year statute of limitations.  For example, say an employee was underpaid wages between June 5, 2006 and April 10, 2008.  The employee must file a legal complaint by June 5, 2008 (two years from the first unpaid date of June 5, 2006), in order to encompass all the unpaid wages at issue.  For each day the employee waits after June 5, 2008, he or she loses a day’s worth of unpaid wages (potential damages).

• Before you file a legal complaint to an agency (e.g. a wage complaint to the Department of Labor or a wage complaint to your State’s wage-enforcement agency), ask about the potential timelines and success rates.

Before you file a wage complaint with an agency, you may want to ask the contact person what the agency’s success rate is in getting employers to pay unpaid wages.  Is there an 80% rate of employer compliance (wage-payment) when the agency demands unpaid wages from the employer?  50%?  It’s good to get an idea of how well the agency process works, and whether it has teeth in getting employers to pay employees what’s owed.

You should also ask your agency contact how long it typically takes that agency to process a complaint and enforce a decision.   A few months?  Six months to a year?  It is good to get an answer, even if it’s a ballpark estimate.  If the agency complaint is likely to take a long time, you could miss complaint deadlines and opportunities in civil court.

Along those lines, you should also ask your agency contact whether the civil statute of limitations (legal deadline) is frozen, or keeps ticking, while your agency complaint is processed.  For example, in Wisconsin, an employee has the option (on day 1) to file a wage complaint with an agency called the Equal Rights Division (ERD), or the option (on day 1) to file a complaint in civil court.  If the employee files the complaint with ERD, then ERD can pursue unpaid wages dating back 2 years before the date of the ERD complaint.  However, if the employee cannot get the wages via the ERD process and decides to file a civil wage complaint, the 2-year statute of limitations may apply from the civil complaint filing date, not the earlier ERD complaint filing date.  In other words, when a wage complaint is filed at ERD, the 2-year civil deadline may not be frozen and may keep “ticking,” so to speak.  So if a given ERD complaint is likely to take a long time, and/or if the ERD is unlikely to be successful in getting that employer to pay, you want to gauge these things as early as possible.

•  Consider talking to a wage attorney, particularly if you can do so free of charge.

It can be very helpful to discuss your circumstances with an experienced wage attorney, especially if it doesn’t cost you anything.  Many attorneys (including myself) provide initial phone consultations for free, and can provide an preliminary assessment of whether you may have a valid wage claim, and what it’s potential value may be.  Sometimes, an attorney will tell an employee he or she does not have a good potential wage claim, or that a wage claim’s value is so low that it does not justify paying an attorney.  Sometimes, the news is much better, and the attorney may identify potential claims and damages/awards that are above and beyond what the employee anticipated.  The attorney may offer to be retained a on a reduced-fee or contingency basis.  Bottom line is that attorney feedback (particularly free-consultation information) can often be of help.

• If you’re thinking of complaining to your current employer about wages, assess potential benefit versus potential retaliation.

Depending on the circumstances, it may or may not be worth talking to your current employer about your unpaid wages.  If your boss is a hothead and fired the last 3 employees who complained about work issues, then you must give the risk of retaliation great consideration.  (There are laws that prohibit retaliation, but hotheaded managers often don’t follow those laws, even when they’re familiar with them). 

On the other hand, if the manager you are dealing with is generally reasonable and hears out employees who express concerns, then the risk of retaliation is lower.  In that event, you may be more inclined to approach the manager, bring up the wage issue, and try to work things out informally.

There are other unique factors to consider before you approach your employer about potential legal violations.  I describe these factors in greater detail in this post, at Sections 4-6.

If you have been underpaid wages and are considering legal options, considering the factors above will hopefully be of help.

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Attorney Michael Brown or the law firm of Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney.

For more information about Wisconsin Employee Rights Lawyer Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html. 

The article below answers three common questions of workers who have unpaid wages.

Three FAQs of Wisconsin Workers With Unpaid Wages

#1 My employer (or former employer) owes me wages and refuses to pay. What are my options to get paid?

A worker has many options to pursue unpaid wages:

You could try to resolve your concerns informally with the employer.

Sometimes you can resolve wage concerns directly with your employer (or former employer), without the need for legal action. For example, you could send an email to a supervisor about your wage concerns, and that may well resolve your problem. If the employer is generally reasonable, then your concerns may get addressed, and informal resolution may prove your best option.

However, with some employers, informal measures do not prove helpful. For example, an employer may say it is receptive to employee grievances, and have an “investigation” procedure for workers’ concerns about wages and other issues. But workers may find that all such “investigations” are decided in favor of management, and that workers’ informal complaints get them nowhere.

If you feel making informal wage requests to your employer won’t do any good (or may subject you to retaliation, as discussed below), you could look into formal legal options.

You could file a wage complaint to the Wisconsin Equal Rights Division.

Workers seeking unpaid wages may file a labor standards complaint with the State of Wisconsin Equal Rights Division (ERD). More information about filing an ERD complaint can be found at the following website:

http://www.dwd.state.wi.us/er/labor_standards_bureau/how_to_file_a_labor_standards_complaint.htm

There are several advantages to filing an ERD complaint. First, it is fairly simple to complete the complaint and submit it to ERD. You do not need an attorney to deal with the ERD complaint process.

The ERD would investigate your complaint, and determine if wages are payable. If ERD decided wages were owed, it would ask the employer to make payment to you. Often, the employer will pay the wages as requested by ERD.

Filing an ERD complaint can be an effective way to get payment for unpaid wages, without too much time or expense.

Workers with small amounts of wages owed should especially consider filing an ERD complaint as a first course of action. For such workers, pursuing more extensive legal measures than an ERD complaint-namely, pursuing a complaint for unpaid wages in civil court-could wind up costing more than the value of their wages at issue.

However, if you have a significant amount of wages owed, or if you filed an ERD complaint but were unsuccessful in getting the wages paid, a civil complaint may be your best option.

You could file a complaint in civil court.

Filing a civil complaint, while more costly to pursue than an ERD complaint, could provide you with many advantages that the measures above could not. For example, a worker who wins a court decision could be awarded damages (payments) above and beyond the unpaid wages at issue. The worker could be awarded 50% to 100% of the wages amount in addition to the base unpaid wages. Further, the worker could be awarded attorneys fees and costs that were paid to pursue the civil complaint.

A civil complaint has several other advantages as compared to ERD: a civil court has enforcement powers that ERD does not, and in court a worker can raise many legal issues that ERD could not address. For example, a civil complainant could argue that an employer’s owner is personally liable for unpaid wages, and the court would consider that argument and make a determination on the issue. The ERD could not make binding decisions with regard to personal liability, or with regard to several other legal issues. A court can make decisions for all legal issues, and several decisions could considerably serve to a worker’s advantage.

A civil complaint presents the most significant potential advantages for an underpaid worker. However, whether filing a civil complaint is the best option depends on the circumstances, including the amount of wages at issue, and whether other measures have been used without success.

#2: I am worried about making a complaint to my employer or to legal authorities about unpaid wages because I fear my employer may fire me or otherwise retaliate against me. Is there a way I can make my wage concerns known and have these issues examined without retaliation?

State and federal wage laws protect most workers from retaliation, provided steps are taken to set up the protections.

Filing a legal complaint with ERD or in civil court would provide you with the most legal protection from retaliation by your employer. However, many workers choose not to take legal action, and instead contact their employers informally about the unpaid wages.

If you choose to raise the issue of unpaid wages with your employer, you may wish to do the following: (1) state your concerns in writing, via letter or email to all appropriate persons; (2) state your wish to resolve wage concerns amicably with the employer, without legal action; (3) state that if the parties cannot resolve the wage concerns informally, you may file a legal complaint with the ERD or in civil court if necessary; and (4) note that the law protects workers from retaliation for raising wage concerns.

These measures often prevent retaliation, as they ensure the employer is informed it would face legal risk (and financial risk) if it retaliated against the worker. However, the measures are not foolproof. On occasion, a given employer will be informed that the law prohibits retaliation against a worker, but will disregard the law and retaliate anyway.

With that said, if you are going to address your wage issues at all, you should do it right. A worker faces some risk of retaliation by raising any concerns about unpaid wages, even by merely mentioning the concerns to coworkers. Thus, if the concerns are to be raised at all, they should be documented in writing, and communicated in a manner that provides the most legal protection.

If retaliation is a big concern, it could benefit a worker to talk to an attorney to discuss his or her specific circumstances and options before taking action.

#3: My former employer admits that it owes me wages, but states it does not have the money to pay me. Is there anything I can do?

In many cases, yes. First, note that you should carefully examine an employer’s claims of financial hardship, and not accept such claims at face value. There are some employers whose statements about inability to pay are simply false, and who do have sufficient funds to pay their employees’ wages.

Further, even were an employer demonstrated to have severe financial problems – for example, if the employer at issue has filed for bankruptcy- that employer could still have a court judgment rendered against it for unpaid wages and penalties. Further, it is possible a lien could be placed on the employer’s assets, to facilitate payment of the worker’s unpaid wages. Notably, such a lien would take priority over the employer’s debts to many other types of creditors.

There are yet more possible ways to deal with a financially-strapped employer, particularly if the employer became financially-strapped due to intentional misconduct and/or mismanagement.

Under certain circumstances, a judgment of personal liability could be obtained against an employer’s high-level representatives, such as owners or executives. Seeking personal liability is a viable option where the representatives at issue were personally responsible for the failures to pay the wages, and the representatives have financial resources the employer entity may not have.

Employers and representatives who are responsible for unpaid wages should bear the brunt of the harms caused, not the unpaid workers. This is why the legal options above exist: to provide workers with means to pursue unpaid wages, and protect them from retaliation for doing so.

For more information about Wisconsin Employee Rights Attorney Michael F. Brown and Peterson, Berk & Cross, S.C., please visit http://www.pbclaw.com/mb.html.  

DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and Employee Rights Attorney Michael Brown or the law firm of Peterson, Berk & Cross. Legal advice often varies between situations. If you want legal advice for your specific circumstances, you must consult with an attorney.