My husband's company put a pay plan into place not long after he was hired that took either half of his overtime payments or half of his overtime hourly rate and put it into an account for him. This was, in part, to shore up the financial status of the company. My husband left the position over a year ago and after multiple contacts, have not been able to determine how much was put into the account (he never recieved statements on the account) nor has he been able to get his money out of the account and paid to him. I believe we're looking at nearly $5,000. What sort of recourse do we have? Is it time to bring a lawyer into the situation? Or have we lost out based on elapsed time?
Private employers (as opposed to government employers) who engage interstate commerce (that is just about everyone) must pay their non-exempt employees 1.5 times their regular hourly rate for each hour worked by that employee over 40 hours in a given workweek. Pay means pay, not give an employee an IOU and place (or fail to place) the overtime pay into some account to pay out later. An employee may make a claim for unpaid overtime for up to 2 years back overtime pay if the failure to pay was an accident and up to three years back overtime pay if the failure on the part of the employer was intentional. The look-back period begins when you make the claim. It is not dependent on when you left employment.
Example: Employee works for company from January 1 2008 to September 30, 2012. Employer should have, but does not pay Employee overtime. Employee leaves the company and figures out on January 24, 2013, that he should have been paid overtime. Employee finds a labor attorney and files suit the next day - January 25, 2013. Employee can collect all overtime that should have been paid to him from January 25, 2011 (2 years before he filed suit) to September 30, 2012, the date he left the company, unless it appears that the employer intentionally failed to pay overtime, in which case employee can collect overtime pay from January 25, 2010 (3 years before he filed suit) to the time he left the company. The employee cannot collect any overtime pay that was due before the applicable cut-off date.
If your husband is owed overtime from more than 2 years ago, don't delay in asserting your claim, as every day of delay is a day's worth of overtime lost forever.
In addition to the back overtime pay owed, the employer might also be liable for an additional amount in the same amount of the unpaid overtime wages. In other words the employee might collect twice what he is owed, plus attorneys fees. If the employer did this to all or a large number of its employees, they can join together and recover their losses.
Two options. 1) Find a local labor and employment attorney (best bet is to look in your yellow pages for Board Certified Labor and Employment attorneys) - be sure to ask if they represent employees before you tell them anything about your case. OR 2) Contact the local office of the US Department of Labor - Wage & Hour Division. www.dol.gov/whd/america2.htm#Texas
Best of luck.
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