Help! My Employer Is Making Me Work Overtime Off The Books. What Do I Do?

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This question from a reader reflects an all too common situation that many hourly workers face:

Hello. I was reading an article 10 Tricks Employers Use To Cheat Workers Out Of Their Overtime. Here's my problem. My fiancée works at a restaurant, and she recently received a raise from $9/hr to $12/hr. But the owner asked her to take her overtime off the books. The first 2 weeks went by without a hitch, but over the past month, her OT has been short. The past week, she worked 10 hours OT, and received $90, which not only is less than the $18/hr that she is entitled, but he gave her less than her normal 12/hr. He claims that he can't afford to pay her overtime. What should we do? She's clocked in for every minute that she's there, and gets a little slip every time she punches out, but the owner still cuts her a check for usually 38 or 39 hrs, and gives her whatever he pleases in regard to her OT. What can we do?

Many employers cheat hourly employees out of overtime, and demanding they work "off book" is one way they do it. In this case, your fiancée has proof of her hours, so she has some options. You asked two different questions: "What can we do?" and "What should we do?" There may be two different answers, but I'll go through the options I think you have.

  • Report the company to the Department of Labor: The United States Department of Labor (DOL) handles complaints of wage and hour violations, including unpaid overtime. Instructions on how to file a complaint are here. Assuming she isn't exempt from overtime (and hourly employees are almost never exempt), then they may be able to recover the unpaid overtime for her. It's illegal for any person to "discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Fair Labor Standards Act], or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee." That means she is protected against retaliation if she files with DOL or sues. However, it will certainly make her work for this employer going forward awkward. Will the employer look for picky rules violations and find a way to get rid of her? Maybe. It's a risk she'll have to be willing to take if she takes this step while still working for the company.

  • Sue: If she hires a lawyer to sue for her overtime, she'll have someone ready to take action if the employer retaliates. Plus, the lawyer can sue on behalf of any co-workers she has that are in the same boat. Yes, the employer can still find ways to make her life miserable, but the employer may be less likely to mess with her if they know she has a lawyer.

  • Complain to HR or management: A less aggressive step to take would be to complain (I suggest complaints be in writing so she has proof she complained) to Human Resources or someone in management. However, it sounds like this may be a small company so she'd be complaining to the evildoer. Some states (like my home state of Florida) have whistleblower laws that protect if you object to illegal activity like failing to pay all wages, and some don't. The DOL website says this: "Employees are protected regardless of whether the complaint is made orally or in writing. Complaints made to the Wage and Hour Division are protected, and most courts have ruled that internal complaints to an employer are also protected." The "most courts" part makes me nervous, because that means it depends on what state you live in whether or not you are protected. She might want to talk to an employment lawyer in your state to find out her rights before she takes this option. If she complains on behalf of herself and co-workers being cheated out of wages, then she will also likely be protected under the National Labor Relations Act (NLRA), which means she could report retaliation to NLRB. If she complains on her own behalf only, then the NLRA doesn't protect her.

  • Find another job, then sue: If your fiancée is like most people, she will find it extremely awkward to work while she has a legal claim against her employer. It's very stressful, and you have to be strong-willed and proud to hold your head up and face down a wage-stealing employer. Most people can't do it. Unless she's a tough cookie, the best option may be to start looking elsewhere, wait until another job is lined up, and then either report him to DOL or sue. However, if this has been going on for awhile, any delay could result in a statute of limitations problem for some older unpaid wages. She can generally go back two years, three years if she can prove a deliberate violation (which this sounds like, but I recommend not waiting that long).

  • Keep good records: In the meantime, no matter what she decides, she should keep good records of her hours. If the employer makes her punch out early or stops keeping good time records, she should note the time she comes in and the time she leaves every day and keep those records at home or on her (a pocket, purse or briefcase is probably safe). That way she'll have the records when she is ready to take legal action.

An employer who pleads poverty as the reason for not paying employees is still a thief. Don't feel sorry for them. They are stealing the wages you worked hard for and keeping that money you earned for their own purposes. If they can't pay, they shouldn't schedule you to work. It's just as much of a theft as if they reached into your wallet and took cash out. Rather than continue to work for free, wouldn't you rather be with your family or friends, or doing your favorite hobby? Don't let a wage thief get away with stealing your money. Think about which option you want to pursue and then do it, without delay.

Find a new job today!

If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs.

Please note: Anything you write to me may be featured in one of my columns. I won't be able to respond individually to questions.
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