Can Workers Sue for Wage Theft?

Wage theft is when an employer doesn’t pay an employee the wages they have earned. Withholding payment is illegal.

Employees can sue their employer for wage theft to recover unpaid wages and other damages. Many employees never file a wage claim because they fear retaliation by their employer. However, state and federal wage and hour laws prohibit retaliation for filing a wage claim.

Talking to an employment lawyer is confidential and can help you understand your legal rights. To find out about suing your employer for wage theft, contact a local wage and hour attorney.

Understanding Wage Theft

Wage theft can take many forms, including underreporting hours, unpaid overtime wages, or illegal deductions. The Fair Labor Standards Act (FLSA) provides legal protections for most hourly workers. The FLSA regulates:

• Federal minimum wage
• Overtime pay
• Prohibits off-the-clock work
• Mandates recordkeeping

Many state wage and hour laws give stronger worker protections, including overtime laws for work hours over eight hours per day and higher minimum wage laws. Some states require paid rest breaks and mandatory meal breaks. If you work in a state with a higher minimum wage or stronger overtime protections, you get the higher rate under state or local law.

How Common Is Wage Theft?

According to the U.S. Department of Labor (DOL), the agency recovered more than $273 million in back wages and damages in 2024. A bill to amend the FLSA estimates that wage theft costs workers more than $15 billion per year.

“We see lots of small violations,” says wage and hour attorney Caitlin Madden. “Misclassifications happen all the time where workers are wrongly classified as exempt from overtime pay. We also see a lot of travel time complaints where employees are traveling between two places of employment and not being compensated for that travel time.”

Wage theft is more common in low-wage industries. In some industries, compliance with wage and hour laws is below 50 percent. The DOL Wage and Hour Division (WHD) targets certain industries for unpaid wage investigations, including:

• Retail jobs
• Agriculture
• Construction
• Food service
• Health care

Legal Grounds for Suing

If you worked for an employer and they did not pay you for your time, your employer is committing wage theft.

Your employer can only take money from your paycheck for certain reasons. Legal deductions include payroll taxes, income taxes, and wage garnishment. Withholding pay to punish or retaliate against you is illegal.

Workers generally have two options to recover unpaid wages. They can file a wage theft claim with the WHD, which will investigate the workplace, review records, and interview employees. If the WHD finds evidence of wage theft, they can get back pay and liquidated damages.

Workers can also file a civil lawsuit to recover unpaid wages. If the court finds the employer liable for wage theft, the employee can recover back pay, interest, and liquidated damages. Employees can also try to recover attorney fees to pay for the costs of filing the lawsuit. For egregious violations, the court may impose punitive damages to punish the employer for its actions.

What You Need Before Filing a Lawsuit

Before filing a lawsuit or a WHD wage claim, gather evidence to support your claim. This includes any evidence that shows when you worked, including:

• Pay stubs
• Time cards
• Work schedule or timesheets
• Witness statements from coworkers
• Emails or text messages from your employer
• Employment contracts or work agreements

There is a time limit to filing a wage theft claim under federal law. The statute of limitations gives you up to two years from the wage violation to recover back pay. However, for willful violations, the statute of limitations is three years. Contact legal counsel as soon as you can to improve your chances of getting your money.

Navigating the Litigation Process

If you’ve never filed a lawsuit before, the litigation process can appear complex and be time-consuming. Even simple wage loss claims can take months before you find out the outcome. Understanding the court process can help you determine how you want to handle your wage theft claim.

“Looking at an agreement between an employer and an employee in the same way that you would a bilateral agreement between businesses misses the power imbalance that you have when it’s a worker and their employer,” Madden says. “When you first start a new job, and you have a pile of paperwork in front of you, most people aren’t thinking, ‘What will happen if my employer breaks the law and I have to bring suit against them?'”

Wage theft litigation may start with a demand letter from your attorney. Your attorney can also negotiate with your employer to help you recover a settlement without going to court. If your employer will not pay your wages, your attorney files a complaint in court. The complaint lays out the claim and what you want to recover in damages. The employer will then file an answer with the court.

After the initial pleadings, the parties go through discovery to exchange information and records. Discovery includes exchanging documents, depositions (formal interviews), and interrogatories (written questions and answers). After discovery, the judge can set a trial date.

During a trial, each side presents its evidence to the court. This includes showing payroll records, pay stubs, and evidence of employment. The parties may call witnesses to testify about employment practices, wage loss, or other relevant information. At the end of the trial, the judge or jury will determine the outcome.

If the judge or jury finds more likely than not that there was wage theft, the employer will have to pay back pay, interest, and any additional damages as determined by the court. If the judge or jury does not find wage theft, that is the end of the case. However, each party still has a chance to appeal the court’s decision based on limited areas of review.

Class Action Wage Theft Lawsuits

If there are multiple employees joining together in a wage theft claim, the court can certify a class action lawsuit. A class action lawsuit joins similar claims of multiple plaintiffs together in a single case.

“Most often, these issues are not experienced by a single employee,” says employment attorney Chris Jozwiak. “They are often experienced by a class or group of employees, all losing wages under the same policy. These problems may sometimes be remedied internally with a simple complaint, but reports must be made properly, and the key is to speak to an employment law specialist for legal advice. There is a real risk in making these claims; they aren’t easy or a simple thing.”

Class action lawsuits are much more complex, but they can give individual employees stronger bargaining power when they join together. If you have a question about class action wage theft claims, talk to an employment law attorney.

Do All Workers Get Wage Theft Protections?

Minimum wage and overtime laws do not apply to independent contractors or exempt workers. Exempt employees are generally salaried workers in certain types of jobs, including administrative, professional, or executive jobs.

Independent contractors are not employees. For contractors and freelancers, their payment terms depend on their individual contracts. However, contractors may have a breach of contract claim if the company does not pay.

Misclassifying employees as exempt or independent contractors can violate labor and employment laws. Misclassified workers may miss out on overtime pay, employee benefits, and worker protections. If you think your employer misclassified your job status, talk to an employment lawyer.

Seeking Legal Assistance

“These cases require a factually specific analysis, including a close look at the duties of the employee based on the classification of the employee and the degree of control the employee had over the work,” says Jozwiak. “This is not easy to do and is case-by-case specific.”

An employment law attorney can offer legal advice and guide you through a wage violation claim. Your attorney can review your case and explain your legal options. Your lawyer can help you with a WHD unpaid wage claim or file a wage lawsuit in court. Your lawyer can also negotiate a settlement to collect unpaid wages without going to court.

Reputable employment attorneys work on a contingency basis, meaning they only receive payment if a client gets paid. “This is a stressful and emotional time for people. A claim can be incredibly invasive into one’s past and monetary situation,” says Jozwiak. “The last thing we as attorneys want to do is add to the stress.”

A local labor law attorney understands state and federal laws that protect workers’ rights. Contact a local wage and hour lawyer for help with your wage theft case.