How to Recover Unpaid Wages in Florida

how to recover unpaid wages

You just worked your fourth straight week of overtime at your employer’s request. Even though you’ve been working non-stop, your employer has failed to pay you for any of your overtime hours. Or maybe your employer failed to pay you correctly for your overtime hours. You need income, but you’re afraid to say something for fear of causing trouble with the boss or, worse, losing your job.

While many employers pay their employees fairly, accurately, and in accordance with the law, sometimes mistakes are made. Or worse, sometimes employers deliberately fail to pay employees all wages owed.

When this happens, employees are left with trying to recover lost wages. Fortunately, both federal and Florida state laws provide protections for employees seeking to recover unpaid wages from Florida employers.

In this article, we will discuss how Florida employees can recover unpaid wages, including how and when to file a claim, types of unpaid wage claims, as well as related legal protections for Florida employees.

Federal and State Minimum Wage and Overtime Pay Laws

Both federal and Florida law mandate that a covered employee is generally entitled to be paid at least a minimum wage for all time worked unless an exception applies.

The Fair Labor Standards Act (“FLSA”) is the federal law governing minimum wage, overtime pay, and child labor standards for all covered workers. Additionally, nonexempt employees are entitled to receive overtime pay of at least one and one-half (1.5) times the employee’s regular pay rate for all hours worked over 40 hours per work week.

The Florida Minimum Wage Act (“FMWA”) also sets a minimum wage and provides employee protections for covered Florida employees. Currently, Florida does not have any overtime wage law.

Because Florida’s minimum wage (currently $12.00 per hour) is higher than the federal minimum wage, Florida employees must be paid at least the Florida minimum wage for all work performed. However, because Florida law does not address overtime pay, the FLSA overtime wage standards govern Florida employers and employees concerning overtime pay.

Steps to Recover Unpaid Wages in Florida

Under the FLSA and FMWA, covered employees may bring a civil lawsuit against their employer for unpaid wages. However, the steps to recover unpaid wages under the FLSA and FMWA are somewhat different.

Recovering Unpaid Wages Under the FLSA

Under the FLSA, a covered employee may file a private (or civil) lawsuit against their employer (or former employer) to recover unpaid or back wages owed, liquidated damages, and attorneys’ fees and court costs. The specific types of claims and available money damages are discussed below.

An employee seeking to recover unpaid wages under the FLSA may file a lawsuit in a federal or Florida State Court. Employees seeking unpaid wages under the FLSA do not need to notify their employer before filing a lawsuit.

Recovering Unpaid Wages Under the FMWA

Under the FMWA, a covered employee may file a private lawsuit against their employer (or former employer) for unpaid minimum wages.

However, if an employee is claiming unpaid minimum wages under the FMWA, the employee must follow certain steps:

  • First, the employee must notify the employer in writing. The written notice must include the employee’s intent to file a lawsuit for unpaid wages. The written notice must also include (1) the minimum wage to which the employee is entitled (or the employee’s regular rate of pay, if higher); (2) the actual or estimated work dates and hours for which the employee is seeking payment; and (3) the total amount of the unpaid wages owed through the date of the written notice.
  • Next, once the employer receives the written notice, the employer has 15 days to pay the employee the total amount of unpaid wages claimed or resolve the claim to the employee’s satisfaction. If the employer fails to do so, the employee may file a lawsuit against the employer for unpaid wages.

Additional Options for Recovering Unpaid Wages

Additionally, a Florida employee may file a complaint with the U.S. Department of Labor’s Wage and Hour Division for unpaid wages. Further, a Florida employee may be able to file a lawsuit for unpaid wages in a Florida small claims court (for claims of $8,000 or less) or file a claim with a Florida county or local government agency.

For example, employees in Miami-Dade County, Florida, can attempt to pursue a claim under the County’s Wage Theft Ordinance in which a successful employee may recover triple damages.

Filing a lawsuit for unpaid wages can be difficult, and there may be multiple ways an employee may attempt to recover unpaid wages. Therefore, Florida employees seeking to recover unpaid wages should consult with the attorneys at BT Law Group to discuss potential claims, what steps must be taken prior to filing a lawsuit, and where and when to file.

Filing Deadlines for Unpaid Wage Claims in Florida

In addition to taking certain steps before filing a lawsuit for unpaid wages, an employee seeking unpaid wages must file a claim within a strict time period, also known as the statute of limitations.

The statute of limitations may differ depending on the type of unpaid wage claims(s). Employees who fail to file a lawsuit within the appropriate statute of limitations could waive the right to recover lost wages.

FLSA Statute of Limitations

For claims under the FLSA, an employee must file a lawsuit within two years from the date the claim arose. In cases where an employer willfully or deliberately violates the FLSA, a three-year statute of limitation applies.

For example, if an employer deliberately fails to pay a nonexempt employee overtime wages owed, then the employee has three years to file a lawsuit.

FMWA Statute of Limitations

For claims under the FMWA, an employee must file a lawsuit within four years from the date the claim arose. In cases where an employer willfully or deliberately violates the FMWA, an employee has five years to file a lawsuit.

In addition to time limits applying to FLSA and FMWA claims, there may be a different statute of limitations depending on what claims an employee may assert or where the employee chooses to file a claim or lawsuit.

Thus, it is of utmost importance that a Florida employee seeking to recover unpaid wages contact a Florida employment attorney as soon as possible.

Types of Unpaid Wage Claims

Depending on the facts and circumstances, a Florida employee seeking unpaid wages may have one or more potential claims against a Florida employer, including those listed below. You should consult with a Florida employment attorney to evaluate potential claims.

Unpaid wage claims may include (but are not limited to) an employer’s:

  • Failure to pay minimum wage
  • Failure to track hours worked
  • Failure to pay overtime pay
  • Misclassification of employees
    ○ Where an employer improperly classified an employee as “exempt” under the FLSA, as opposed to “nonexempt,” and thereby wrongfully disqualified the employee from entitlement to overtime pay earned; or
    ○ Where an employer improperly classified a worker as an “independent contractor” as opposed to an “employee,” thereby impacting the worker’s rights under the FLSA and Florida law
  • Failure to pay accrued but unused vacation, holiday, and/or paid time off (if the employer has a policy or agreed to do so)
  • Improper auto deductions for meal breaks if the employee is not relieved of job duties
  • Permitting and/or failing to pay for “off-the-clock” work
  • Failure to reimburse expenses
  • Failure to pay earned commissions and/or bonuses
  • Breach of contract (where an employer has explicitly agreed to pay an employee certain compensation but fails to do so)

Again, whether or not an employee may assert a certain claim is fact-specific and varies from case to case. Florida employees should consult with the attorneys at BT Law Group to evaluate potential claims.

Recovering Damages for Unpaid Wages in Florida

If an employee successfully brings a lawsuit against an employer for unpaid wages, the employee is likely entitled to monetary recovery or “damages” for the employer’s violations.

The amount of recovery available depends on the facts and circumstances of the employee’s case and the types of claims asserted.

An employee who successfully sues an employer for unpaid wages could be entitled to:

  • Unpaid or back pay wages owed – the actual amount of wages that an employer failed to pay an employee
  • Liquidated damages – a monetary amount equal to the unpaid wages the employee should have received
  • Reasonable attorney’s fees and court costs

Protection from Retaliation for Asserting Wage Rights

Often, employees may be afraid to speak up or file a claim for unpaid wages out of fear of losing their job or being punished by their employer for doing so.

However, the FLSA and FMWA prohibit employers from taking any retaliatory or adverse employment action against an employee because the employee has complained about or attempted to assert rights under the law. Such prohibited employer conduct includes termination of employment, reduction in work hours or pay, demotion, and harassment.

For example, an employee verbally complains to a supervisor about not receiving overtime wages that the employee earned. In response, the supervisor fires the employee because of the complaint about unpaid overtime wages. In this case, the supervisor’s (and thereby the employer’s conduct) is likely unlawful under the FLSA.

Let BT Law Group Help You Recover Your Unpaid Wages

Florida employees fighting to recover unpaid wages may be stressed or afraid to ask their employer for the pay they are owed. Florida employees do not have to go it alone.

BT Law Group has extensive experience fighting on behalf of Florida employees to recover unpaid wages and can guide Florida employees in understanding their rights under the law.

Author Bio

BT Law Group is an employment law firm in Miami, FL, founded by attorneys Jason D. Berkowitz and Anisley Tarragona. With a wealth of experience in various legal areas, they represent clients in various legal matters, including discrimination, unpaid wages, wrongful termination, management counseling, and other cases.

Since receiving their Juris Doctorates from the University of Miami School of Law, they have received numerous accolades for their accomplishments, including being selected to Rising Stars by Super Lawyers. Jason was also selected to The 2021 Best Lawyers in South Florida.

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