how to get unpaid wages and back pay from your employer

How to File an Unpaid Wages Claim in Florida and Recover Your Back Pay

Has your employer failed to pay you the wages you’ve earned? If so, under federal and Florida labor laws, you may have the legal right to recover those wages along with liquidated damages designed to penalize your employer for wage violations. In addition, you may also be entitled to court costs and attorney fees.


You may have a wage claim for any of the following reasons:

  • You weren’t paid the legal minimum wage rate
  • You didn’t receive a final paycheck after leaving your job
  • You were required to work through breaks
  • You weren’t compensated for earned vacation time
  • You weren’t paid bonuses owed to you
  • You weren’t paid commissions owed to you

Before moving forward, it may be in your best interest to consult an experienced employment law attorney who can help determine whether you should pursue a lawsuit against your employer.

Your Employer Failed to Pay You the Wages You Are Owed

Under the Fair Labor Standards Act (FLSA), which legislates minimum wage and overtime eligibility standards, you are entitled to be paid the highest minimum wage, whether it’s the federal, state, or local rate. In Florida, the current minimum wage is $8.10 per hour; though it will rise to $8.25 per hour in January 2018. Conversely, the federal minimum wage is $7.25, so if you work in Florida, you should be paid the Florida minimum wage rate. There are a few exceptions, including West Palm Beach, where individuals who work for the city are paid more than Florida’s minimum wage rate.

When determining how much your employer owes you in back pay, simply figure out the difference of what you were actually paid per hour compared to what you should have been paid. Next, multiply that amount by the hours you worked. For example, perhaps your employer paid you the federal minimum wage rate, rather than Florida’s minimum wage rate. Say you worked 70 hours over a two-week pay period. The difference ($8.10 – $7.25) would be $0.85, which you would multiply by 70. So you would be owed $59.50 for that pay period.

On the other hand, if you work for tips, your employer is entitled to pay you a lower hourly wage (in 2017, $5.08 is the minimum in Florida, and it will increase to $5.23 in 2018). However, you have to make enough money in tips to at least reach the Florida minimum wage rate. If you don’t, your employer is required to pay the difference.

Not Getting Paid Fair Wages For Hours You've Worked?

Your Employer Failed to Pay You Overtime

Although Florida does not have an overtime law, the state’s employers have to abide by the federal overtime standard. This means that under the FLSA they are required to pay nonexempt employees time and a half if they work more than 40 hours in a given workweek.

If your employer only pays you your regular hourly rate, but you worked more than 40 hours in a week, you are entitled to whatever comes out to 50% of your hourly wage. For example, if you are paid $9 an hour, you should be paid an extra $4.50 an hour ($13.50) for each overtime hour you work. So if you work 48 hours in a given week, you should receive $468, rather than $432.

Other Examples of Compensation You May Be Able to Collect From Your Employer

If your employer chooses to provide breaks during the workday and you have to work through those breaks, under federal law you are entitled to be paid for them. For example, if you work at your desk while you eat your lunch, you are entitled to be compensated for that time. In addition, if you weren’t compensated for breaks, make sure you add the time up because it could boost your total weekly hours above the overtime threshold. Thus, you will need to be compensated accordingly.

In some cases, the same holds true for bonuses. If your employer promised you a non-discretionary bonus, which is tied to employee performance, you are entitled to that bonus if you satisfactorily completed the work. However, if your employer said they were going to give you a discretionary bonus, such as a Christmas bonus, which is essentially a gift, you generally have no legal recourse to collect that bonus. The same holds true for commissions: If you can prove you earned the commission, you should be able to recover it as part of unpaid wages. However, if you were separated from your job before the commission was fully vested, it will likely be more difficult to recover.

If you leave your job and you have accrued vacation time not taken—that is, as long as your employer has a written policy or contract that promises payment for that vacation—you may be able to collect payment for that time. Florida labor laws specify that if vacation “is promised by implied or express contract,” it must be “compensated in accordance with the employer’s accrual plan.”

wrongful termination when your termination is illegal man being fired

Steps to Take to File an Unpaid Wages Claim in Florida

Once you determine that your employer owes you unpaid wages, you need to take the following steps, if you want to make a claim under the Florida Minimum Wage Statute (F.S. § 448.110).

  1. Notify your employer in writing that you plan to bring a claim against them. In the notice, you must state that you are requesting unpaid wages, the dates and hours of the unpaid wages, and the total amount your employer owes you.
  2. Your employer then has 15 days from the time you submit the notice to pay your claim or settle the claim to your satisfaction.
  3. An attorney can assist you with these steps and follow up with you should the employer fail to pay the amount owed by filing a lawsuit against your employer.

To make a claim under the Florida Minimum Wage Statute, you have to file a lawsuit within four years of when the violation occurred or five years if the violation was willful.

Conversely, you don’t have to notify your employer if you file a lawsuit under F.S. § 95.11(4)(c); however, you only have two years to file, as opposed to four or five years. And you also won’t be able to collect liquidated damages.

In addition, under the FLSA, you have to file your lawsuit within two years of the date of the violation (or again, when you learned of the violation) or three years if the violation was willful.

retaliation in the workplace ebook

What Are Employer Penalties for Unpaid Wages?

If you decide to pursue a lawsuit against your former employer under the FLSA, you may be able to collect penalties in addition to back pay. In Florida, if your employer violates the state minimum wage law, you could receive liquidated damages in the same amount as your unpaid wages, civil money penalties, and attorney’s’ fees and court costs.

So, for example, if you are owed $500 in unpaid wages, you could receive an additional $500 in liquidated damages. However, for you to receive liquidated damages, you must notify your employer of your intention to sue (see above).

You can also receive liquidated damages under the FLSA if your employer neglects to pay you overtime. So if you are owed $1,000 in overtime pay, you could be eligible for $1,000 in liquidated damages.

Additionally, under the FLSA, employers can be penalized for retaliating against you for filing a complaint with the DOL or because you are participating in legal proceedings under the FLSA.

Contact an Unpaid Wages Attorney in Florida

If you’ve been denied the wages you are owed, obtaining legal counsel prior to filing a claim can be very beneficial. An experienced Florida wage and hour disputes attorney can assess the evidence and determine the proper strategy before deciding which course of action to take regarding your unpaid wages claim. In addition, an experienced attorney can ascertain whether you’ve been discriminated against or been subject to a breach of contract.

At Wenzel Fenton Cabassa, P.A., we know you work hard for the money you’ve earned. So if you haven’t received the wages, overtime pay, bonuses, or commissions you’re legally owed by your employer, one of our experienced employment law attorneys can help. Contact us today. The initial consultation is free.

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