About Wage Theft



What is Wage Theft?
Wage theft is when the boss does not pay you:
  • the wage you agreed to
  • for all of the hours you worked
  • time and half for more than 40 hours in a week
  • an extra hour for any days you worked more than 10 hours or you were stuck at work for more than 10 hours (even with breaks or two shifts)
  • at least four hours pay if you showed up for a scheduled shift and were sent home early

It also includes illegal deductions from your pay.

Example:

Raquel worked putting up sheetrock at a home renovation. Her employer did not like the way the sheetrock work was assembled and refused to pay for the four days that it took her to put up the sheet rock.

What can I do about wage theft?

You have a right to your wages. Your employer must comply with the basic protections under the law, or pay fines and penalties in addition to your unpaid wages. Laws protect all workers against wage theft, including immigrants. If you are the victim of wage theft, you can file a New York State Department of Labor (NY DOL) wage theft complaint form. The form collects details about you and your employer, including the business address, worksites, dates and hours you worked, how much you were paid, and more. The NY DOL will investigate your claim. It can order the employer to pay you back the wages you are owed, with fines and penalties.

How can Reclamo help with wage theft?

Reclamo helps you understand the law and what your employer should have paid you. Your Advocate uses Reclamo to guide you through the New York State Department of Labor (NY DOL) wage theft complaint form. Your answers to Reclamo's questions fill in the complaint form. You can print the form and send it to the NY DOL. Reclamo also creates a phone script and a "demand letter" to send your employer demanding your stolen wages.

What are employers supposed to pay?
Employers must pay:
  • the wage you agreed to
  • for all of the hours you work
  • the overtime rate for any weeks you work more than 40 hours (overtime is 1.5 x your regular hourly wage)
  • an extra hour every time you are at work for more than 10 hours
  • at least 4 hours in wages for the days you were called in but sent home early

Employers must follow other rules too, like giving you a notice of pay rate and a proper pay stub. They are not allowed to make illegal deductions from your pay.

What is overtime?

"Overtime" is the legal rate of pay for a long work week. If you work more than 40 hours in a week, your employer must pay you more for those extra hours. The overtime rate is time-and-a-half. In other words, it is your regular hourly rate plus another 50%.

Example:

Let's say you earn $30 per hour, and you worked 42 hours one week. You earn your regular $30 hourly rate for the first 40 hours. For the extra two hours, you earn $45 an hour in overtime.

$30 (regular hourly rate)
+$15 (half your hourly rate)
=$45 (your overtime rate)

What is call-in pay?

"Call-in" pay is the minimum legal pay for showing up to work a scheduled shift. Your employer must pay you for at least four hours (unless the shift was scheduled for less) when they send you home early.

Example:

You are scheduled to work Monday, 7:00 am to 3:00 pm. A half hour after you arrive, your boss sends you home because he doesn't have the supplies you need for your shift. Under the call-in rules, your employer owes you four hours' wages.

What is spread of hours?

"Spread of hours" is the legal pay for a long day at work. If your work day ends 10 hours (or more) after it begins, then your employer must pay you spread of hours. The spread of hours pay rate is an extra one hour of pay for that day. It includes split shifts and other breaks.

Example:

In one day you work from 7:00 am to 12:00 pm and from 1:00 pm to 5:30 pm. Your employer owes you for the 9.5 hours work PLUS an extra hour of pay because your work day ended more than ten hours after it started.

Should I get paid for lunch breaks?

If your lunch break is shorter than 30 minutes, then the employer must pay you for your lunch break. If your lunch break is for 30 minutes or longer and you are free during that time, then the employer does not have to pay you for your lunch break.

Example:

If you worked from 8:00 am to 4:00 pm with a 30 minute lunch break, the employer only has to pay you for 7.5 hours. But if your lunch break was 20 minutes long, the employer has to pay you for 8 hours.

What are illegal deductions?
An illegal deduction is money your employer illegally takes out of your pay. Examples include:
  • Deductions the employer says are for taxes, but you are paid in cash or don't get a pay stub.
  • Wages from when you started working, that your employer is holding "in deposit."
  • Deductions for work you needed to do over.
  • Deductions for tools the employer required and purchased, or tools or equipment you lost or damaged.
  • Other unpaid work time such as “off-the-clock” work you did before or after your scheduled shift, training time, or work-related travel (this does not include your normal commute to and from work).

When you file a wage theft claim with the New York State Department of Labor (NY DOL), you can include information about illegal deductions. The DOL can order the employer to pay you back for any illegal deductions they made.

How do I prove wage theft?

You can use official records and your own records to support your claim. This may include pay stubs, employer notices about pay, an employee handbook, proof that you worked for an employer (examples: work site IDs, uniforms, photos from the job site), tax statements or filings, your own notes about hours and pay, copies of emails or text messages you sent to your boss, your bank records, what you remember, and more. If your employer never gave you any pay or work related documents, that can be part of your proof too. The New York State Department of Labor (NY DOL) can contact you if they need more information.

How do I make a wage theft claim against my employer?

In New York State, you file a Form LS 223. If you are a construction worker, you can use Reclamo to make a wage theft claim against your employer. An Advocate can help you answer the questions that fill out the complaint form.
You can directly ask or demand your employer to pay what they owe. Reclamo helps you write a demand letter and fills in a phone script you can use to help you call them and demand your pay.
For some cases, you can take your employer to court for a wage theft claim.

Can Reclamo help me?
Reclamo can help if:
  • you are a construction worker
  • the wage theft happened mostly in New York State
  • your claim is for wage theft in the past three years
How do I use Reclamo?

An Advocate can guide you through the Reclamo interview, to help you fill out the New York State Department of Labor (NY DOL) wage theft complaint form and prepare a "demand letter" for your employer. To get ready:

  • write down everything you remember about the wage theft
  • find any pay stubs or other records you kept, including text messages, uniforms or photos
  • make a list of employer names and addresses or any contact information, work site locations, and dates and hours you worked
  • look for an employee handbook (online or given to you) or any other documents from your employer