Underpaid? How to Know if Your Employee Rights are Being Violated

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In the 10 U.S. states with the highest populations, a total of 2.4 million workers lost out on $8 billion in annual earnings as a result of violations of minimum wage laws, according to a 2017 report from the Economic Policy Institute. This equates to around $3,300 annually for year-round workers, which is close to a quarter of earned wages for a minimum-wage worker.

employee rights

Image credit: Business Insider

Minimum wage workers are not the only ones who experience wage theft as a result of employers violating federal labor laws. “There are many different ways an employee may be underpaid,” according to William Tucker, a small business attorney at Gehres Law Group.

Tucker explained employees are underpaid when employers don’t provide proper payment for overtime; when employees aren’t provided with meal breaks and rest periods; when employers don’t provide required wage statements; and when workers are not paid final wages in a timely manner after leaving their jobs.

If you’re an employee and you fear you’re not paid properly, you have legal rights and should not be afraid to raise the issue with your employer or take other steps to pursue a remedy.

“Many states have strong laws against retaliation or discrimination for making an oral or written complaint for wages owed,” according to Darren Lipinsky, a senior trial attorney at Lipinsky Employment Lawyers. “Federal law also protects against such discrimination or retaliation.”

To help ensure your employee rights are being respected, here are a few key things to know about how federal labor laws work to prevent wage theft.

The minimum wage can vary based on where you live and work

Many professional workers have the option to negotiate salary when starting a job to ensure they receive a fair pay based on their skills. There are also specific rules that protect all workers, including those who don’t have a lot of leverage in the marketplace to negotiate their wage. One of those rules relates to minimum wage.

One of the most basic rights of every worker is the right to be paid at least the minimum wage. For many workers, the minimum wage is the federal minimum wage of $7.25 hourly, according to the United State’s Department of Labor.

In 2016, 701,000 workers aged 16 and over were paid the federal minimum wage, while an estimated 1.5 million workers were paid less than the federal minimum, according to the Bureau of Labor Statistics (BLS). BLS explains many of the 1.5 million workers paid under $7.25 hourly are not protected by minimum wage laws because they fall into exemptions, like rules allowing some hand-harvesters to be paid under minimum wage.

Federal labor laws also allow for tipped workers to be paid a lower minimum wage of $2.13 hourly, which is why it is so important to tip service providers an appropriate amount. However, if tipped workers don’t actually make up the difference between $2.13 and $7.25 with their tips received, their employer will have to pay more. It is the responsibility of employers to make sure they are paying the difference if tips don’t add up to at least minimum wage. However, tipped workers should track their tips to ensure they are getting paid fairly and should talk with an employer if their wages fall short.

Tipped workers aren’t the only ones subject to a different minimum wage rule than the federal requirement of $7.25 per hour. Some workers are covered by states and local laws imposing higher wages than this federal minimum.

In California, for example, employers with 25 or fewer employees must pay a minimum wage of $10.50 hourly as of 2018, and employers with more than 25 employees must pay at least $11 hourly. This chart from Kiplinger shows minimum wage in each state relative to the federal wage in 2017.

federal labor laws

Image credit: Kiplinger

 

The rules for overtime pay

Hourly employees and some salaried workers (workers paid a set amount rather than an hourly wage) generally must not only be paid at least the minimum wage, but employees must also be paid overtime once they exceed a certain number of hours of work per week.

According to the Department of Labor, employees must receive overtime pay once they have worked more than 40 hours in a workweek. A workweek does not have to match up with a calendar week, as any seven consecutive 24-hour periods can be considered a work-week.

Employees must be paid overtime at a rate equal to at least time and one-half their regular hourly wage. If a worker earns $10 per hour, this means his overtime wage would need to be at least $15 hourly ($10 * 1.5). Federal law does not require overtime just because workers are made to come to work on weekends or holidays, unless working on these days pushes the employee over the 40-hour threshold.

Some states require overtime in more situations than federal labor laws. For example, in California, employees are not just entitled to overtime if they work more than 40 hours per week. They are also entitled to overtime if they work more than eight hours in a single day or if they work for seven days in a row.

Some workers are exempt from overtime rules

Both state and federal laws, however, exempt some workers from being entitled to overtime. Workers who may be exempt include outside sales employees, workers in computer-related occupations, executive employees, administrative employees, and professional employees. The FLSA overtime pay calculator advisor allows employers and employees to input information about a position to determine if a worker is potentially exempt.

Generally, if workers make a salary of at least $455 weekly and their job duties mean they fall within one of the above-listed categories of exempt workers, an employer is not required to pay overtime, even if they work over 40 hours weekly.

Job titles alone do not make workers exempt; the key is whether the workers meet the criteria for being a professional worker, administrative employee, or other exempt employee. The specific criteria vary depending on your job. For example, for a worker to be exempt based on being an executive employee:

  • The worker must regularly supervise at least two other employees.
  • Management must be the worker’s primary obligation.
  • The worker must have input into the status of the employees being supervised, such as input into whether to fire or promote an employee.

Unfortunately, there is a big problem with employers incorrectly classifying workers as exempt who shouldn’t be. Employers may classify workers as “professionals” and pay them a salary to avoid paying overtime the employees would receive if they were hourly workers. In 2012, Walmart paid $4.8 million in damages to 4,500 workers because those workers were misclassified as exempt from overtime.

If an employee is incorrectly classified as exempt and not paid overtime, that employee can take action, just as the Walmart workers did, to get back pay that is owed.

The rules for worker pay

In addition to overtime rules and minimum wage rules, there are also other federal labor laws that protect employee rights. For example:

  • You must be paid for all time worked. This includes time spent taking protective gear off and on, as well as all time you are required to be on the employer’s premises or on duty.
  • Uniforms and other items provided by an employer aren’t wages. An employer cannot include the costs of a uniform — or other items provided primarily for the employer’s benefit — as part of wages. If an employer requires workers to pay for uniforms or other materials, the employer is in violation of labor laws if these costs cause wages to fall below the minimum. Employees can make workers purchase their own uniforms as long as doing so would not reduce their pay to below minimum wage.
  • Employers cannot dock wages: An employer cannot cause a worker’s wages to fall below minimum wage by deducting losses from an employee’s wages, such as taking money from a cashier’s paycheck if the drawer is short.

Some states also require employers to pay for meal breaks or other rest periods. For example, in California, workers are entitled to 10 minutes of paid rest for every four hours worked. You can find your state rules for rest breaks on the website of the Department of Labor. Some states also require employers to provide a last paycheck right away for departing workers, but the Department of Labor indicates this is not a federal requirement.

What can you do to protect your employee rights if you’re underpaid?

While there are many employee rights guaranteed under federal labor laws, these rules can be confusing. Many workers aren’t fully aware of what to do if their employer is violating the rules.

Make a written complaint

Lipinsky recommends submitting a complaint in writing to your human resources department or to someone with authority to handle the problem within your organization. He refers to this as “establishing proof of the complaint,” and recommends the written complaint also “document any past oral complaints of wage theft that have unsuccessfully been made.”

Document any attempts at retaliation your employer makes

Employers are not allowed to retaliate against you for exercising your employee rights in connection with unpaid wages. As Lipinsky explains: “Most courts have held that these laws [federal and state labor laws] protect those employees who make internal complaints, not just those employees who complain to a government agency.” If your employer takes adverse action after you make a complaint, document your employer’s actions.

File a complaint with the Department of Labor

If the company fails to respond to an internal complaint or retaliates against a worker for making one, the next step Lipinsky recommends is to file a complaint with the state or federal Department of Labor or other appropriate agency. Both Tucker and Lipinsky indicate that state or federal labor departments can provide advice and will sometimes conduct an investigation and take enforcement action. Tucker advises going in person to the office near you to make your complaint and get help. You can enter your zip code on the Department of Labor website to find workforce services in your area.

Contacting an attorney is also an option, but Tucker warns it can sometimes be difficult to find a lawyer willing to take a case based on underpaid wages. “It will depend on how good a case the employee appears to have and the value of the case,” Tucker says. “In some instances, the case may be a good one, but the value is not high enough for an attorney to take it on.”

If your employer underpaid you by a small amount, like $100, it would not be worth an attorney’s time to take the case. Lipinsky says that working with an attorney could be “particularly useful when a company-wide practice of wage theft has negatively affected multiple employees.” An attorney could help those workers come together to make a joint complaint.

For smaller claims, Tucker suggests small claims court as an option and indicates it may be possible for an employee to collect the full amount owed in small claims court if the employee’s case has merit.

Whether you decide to talk with a lawyer, go to small claims court, reach out to a labor department or pursue some other legal remedy, the key is to know your employee rights and to stand up for yourself if your employer fails to pay you the wages that you deserve.

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1 Important Disclosures for Earnest.

Earnest Disclosures

To qualify, you must be a U.S. citizen or possess a 10-year (non-conditional) Permanent Resident Card, reside in a state Earnest lends in, and satisfy our minimum eligibility criteria. You may find more information on loan eligibility here: https://www.earnest.com/eligibility. Not all applicants will be approved for a loan, and not all applicants will qualify for the lowest rate. Approval and interest rate depend on the review of a complete application.

Earnest fixed rate loan rates range from 3.89% APR (with Auto Pay) to 6.97% APR (with Auto Pay). Variable rate loan rates range from 2.47% APR (with Auto Pay) to 6.30% APR (with Auto Pay). For variable rate loans, although the interest rate will vary after you are approved, the interest rate will never exceed 8.95% for loan terms 10 years or less. For loan terms of 10 years to 15 years, the interest rate will never exceed 9.95%. For loan terms over 15 years, the interest rate will never exceed 11.95% (the maximum rates for these loans). Earnest variable interest rate loans are based on a publicly available index, the one month London Interbank Offered Rate (LIBOR). Your rate will be calculated each month by adding a margin between 1.82% and 5.50% to the one month LIBOR. The rate will not increase more than once per month. Earnest rate ranges are current as of Month/Day/Year, and are subject to change based on market conditions and borrower eligibility.

Auto Pay discount: If you make monthly principal and interest payments by an automatic, monthly deduction from a savings or checking account, your rate will be reduced by one quarter of one percent (0.25%) for so long as you continue to make automatic, electronic monthly payments. This benefit is suspended during periods of deferment and forbearance.

The information provided on this page is updated as of 08/21/18. Earnest reserves the right to change, pause, or terminate product offerings at any time without notice. Earnest loans are originated by Earnest Operations LLC. California Finance Lender License 6054788. NMLS # 1204917. Earnest Operations LLC is located at 302 2nd Street, Suite 401N, San Francisco, CA 94107. Terms and Conditions apply. Visit https://www.earnest.com/terms-of-service, email us at hello@earnest.com, or call 888-601-2801 for more information on ourstudent loan refinance product.

© 2018 Earnest LLC. All rights reserved. Earnest LLC and its subsidiaries, including Earnest Operations LLC, are not sponsored by or agencies of the United States of America.


2 Important Disclosures for Laurel Road.

Laurel Road Disclosures

APR stands for “Annual Percentage Rate.” Rates listed include a 0.25% EFT discount, for automatic payments made from a checking or savings account. Interest rates as of 11/8/2018. Rates subject to change.

Variable rate options consist of a range from 3.27% per year to 6.09% per year for a 5-year term, 4.64% per year to 6.14% per year for a 7-year term, 4.69% per year to 6.19% per year for a 10-year term, 4.94% per year to 6.44% per year for a 15-year term, or 5.19% per year to 6.69% per year for a 20-year term, with no origination fees. APR is subject to increase after consummation. The variable interest rate will change on the first day of every month (“Change Date”) if the Current Index changes. The variable interest rates are based on a Current Index, which is the 1-month London Interbank Offered Rate (LIBOR) (currency in US dollars), as published on The Wall Street Journal’s website. The variable interest rates and Annual Percentage Rate (APR) will increase or decrease when the 1-month LIBOR index changes. The variable interest rates are calculated by adding a margin ranging from 0.98% to 3.80% for the 5-year term loan, 2.35% to 3.85% for the 7-year term loan, 2.40% to 3.90% for the 10-year term loan, 2.65% to 4.15% for the 15-year term loan, and 2.90% to 4.40% for the 20-year term loan, respectively, to the 1-month LIBOR index published on the 25th day of each month immediately preceding each “Change Date,” as defined above, rounded to two decimal places, with no origination fees. If the 25th day of the month is not a business day or is a US federal holiday, the reference date will be the most recent date preceding the 25th day of the month that is a business day. The monthly payment for a sample $10,000 loan at a range of 3.27% per year to 6.09% per year for a 5-year term would be from $180.89 to $193.75. The monthly payment for a sample $10,000 loan at a range of 4.64% per year to 6.14% per year for a 7-year term would be from $139.65 to $146.76. The monthly payment for a sample $10,000 loan at a range of 4.69% per year to 6.19% per year for a 10-year term would be from $104.56 to $111.98. The monthly payment for a sample $10,000 loan at a range of 4.94% per year to 6.44% per year for a 15-year term would be from $78.77 to $86.78. The monthly payment for a sample $10,000 loan at a range of 5.19% per year to 6.69% per year for a 20-year term would be from $67.05 to $75.68.

However, if the borrower chooses to make monthly payments automatically by electronic funds transfer (EFT) from a bank account, the variable rate will decrease by 0.25%, and will increase back up to the regular variable interest rate described in the preceding paragraph if the borrower stops making (or we stop accepting) monthly payments automatically by EFT from the designated borrower’s bank account.


3 Important Disclosures for SoFi.

SoFi Disclosures

  1. Student loan Refinance: Fixed rates from 3.899% APR to 7.979% APR (with AutoPay). Variable rates from 2.470% APR to 6.990% APR (with AutoPay). Interest rates on variable rate loans are capped at either 8.95% or 9.95% depending on term of loan. See APR examples and terms. Lowest variable rate of 2.470% APR assumes current 1 month LIBOR rate of 2.30% plus 0.91% margin minus 0.25% ACH discount. Not all borrowers receive the lowest rate. If approved for a loan, the fixed or variable interest rate offered will depend on your creditworthiness, and the term of the loan and other factors, and will be within the ranges of rates listed above. For the SoFi variable rate loan, the 1-month LIBOR index will adjust monthly and the loan payment will be re-amortized and may change monthly. APRs for variable rate loans may increase after origination if the LIBOR index increases. The SoFi 0.25% AutoPay interest rate reduction requires you to agree to make monthly principal and interest payments by an automatic monthly deduction from a savings or checking account. The benefit will discontinue and be lost for periods in which you do not pay by automatic deduction from a savings or checking account. *To check the rates and terms you qualify for, SoFi conducts a soft credit inquiry. Unlike hard credit inquiries, soft credit inquiries (or soft credit pulls) do not impact your credit score. Soft credit inquiries allow SoFi to show you what rates and terms SoFi can offer you up front. After seeing your rates, if you choose a product and continue your application, we will request your full credit report from one or more consumer reporting agencies, which is considered a hard credit inquiry. Hard credit inquiries (or hard credit pulls) are required for SoFi to be able to issue you a loan. In addition to requiring your explicit permission, these credit pulls may impact your credit score.
  2. Terms and Conditions Apply. SOFI RESERVES THE RIGHT TO MODIFY OR DISCONTINUE PRODUCTS AND BENEFITS AT ANY TIME WITHOUT NOTICE. To qualify, a borrower must be a U.S. citizen or permanent resident in an eligible state and meet SoFi’s underwriting requirements. Not all borrowers receive the lowest rate. To qualify for the lowest rate, you must have a responsible financial history and meet other conditions. If approved, your actual rate will be within the range of rates listed above and will depend on a variety of factors, including term of loan, a responsible financial history, years of experience, income and other factors. Rates and Terms are subject to change at anytime without notice and are subject to state restrictions. SoFi refinance loans are private loans and do not have the same repayment options that the federal loan program offers such as Income Based Repayment or Income Contingent Repayment or PAYE. Licensed by the Department of Business Oversight under the California Financing Law License No. 6054612. SoFi loans are originated by SoFi Lending Corp., NMLS # 1121636. (www.nmlsconsumeraccess.org)

4 Important Disclosures for LendKey.

LendKey Disclosures

Refinancing via LendKey.com is only available for applicants with qualified private education loans from an eligible institution. Loans that were used for exam preparation classes, including, but not limited to, loans for LSAT, MCAT, GMAT, and GRE preparation, are not eligible for refinancing with a lender via LendKey.com. If you currently have any of these exam preparation loans, you should not include them in an application to refinance your student loans on this website. Applicants must be either U.S. citizens or Permanent Residents in an eligible state to qualify for a loan. Certain membership requirements (including the opening of a share account and any applicable association fees in connection with membership) may apply in the event that an applicant wishes to accept a loan offer from a credit union lender. Lenders participating on LendKey.com reserve the right to modify or discontinue the products, terms, and benefits offered on this website at any time without notice. LendKey Technologies, Inc. is not affiliated with, nor does it endorse, any educational institution.


5 Important Disclosures for CommonBond.

CommonBond Disclosures

Offered terms are subject to change. Loans are offered by CommonBond Lending, LLC (NMLS # 1175900). If you are approved for a loan, the interest rate offered will depend on your credit profile, your application, the loan term selected and will be within the ranges of rates shown.

All Annual Percentage Rates (APRs) displayed assume borrowers enroll in auto pay and account for the 0.25% reduction in interest rate. All variable rates are based on a 1-month LIBOR assumption of 2.28% effective October 10, 2018.


6 Important Disclosures for Citizens Bank.

Citizens Bank Disclosures

  1. Education Refinance Loan Rate Disclosure: Variable rate, based on the one-month London Interbank Offered Rate (“LIBOR”) published in The Wall Street Journal on the twenty-fifth day, or the next business day, of the preceding calendar month. As of November 1, 2018, the one-month LIBOR rate is 2.29%. Variable interest rates range from 2.79%-8.39% (2.79%-8.39% APR) and will fluctuate over the term of the borrower’s loan with changes in the LIBOR rate, and will vary based on applicable terms, level of degree earned and presence of a cosigner. Fixed interest rates range from 3.75%-8.69% (3.75%-8.69% APR) based on applicable terms, level of degree earned and presence of a cosigner. Lowest rates shown require application with a cosigner, are for eligible, creditworthy applicants with a graduate level degree, require a 5-year repayment term and include our Loyalty discount and Automatic Payment discounts of 0.25 percentage points each, as outlined in the Loyalty and Automatic Payment Discount disclosures. The maximum variable rate on the Education Refinance Loan is the greater of 21.00% or Prime Rate plus 9.00%. Subject to additional terms and conditions, and rates are subject to change at any time without notice. Such changes will only apply to applications taken after the effective date of change. Please note: Due to federal regulations, Citizens Bank is required to provide every potential borrower with disclosure information before they apply for a private student loan. The borrower will be presented with an Application Disclosure and an Approval Disclosure within the application process before they accept the terms and conditions of their loan.
  2. Federal Loan vs. Private Loan Benefits: Some federal student loans include unique benefits that the borrower may not receive with a private student loan, some of which we do not offer with the Education Refinance Loan. Borrowers should carefully review their current benefits, especially if they work in public service, are in the military, are currently on or considering income based repayment options or are concerned about a steady source of future income and would want to lower their payments at some time in the future. When the borrower refinances, they waive any current and potential future benefits of their federal loans and replace those with the benefits of the Education Refinance Loan. For more information about federal student loan benefits and federal loan consolidation, visit http://studentaid.ed.gov/. We also have several resources available to help the borrower make a decision at http://www.citizensbank.com/EdRefinance, including Should I Refinance My Student Loans? and our FAQs. Should I Refinance My Student Loans? includes a comparison of federal and private student loan benefits that we encourage the borrower to review.
  3. Citizens Bank Education Refinance Loan Eligibility: Eligible applicants may not be currently enrolled. Applicants with an Associate’s degree or with no degree must have made at least 12 qualifying payments after leaving school. Qualifying payments are the most recent on time and consecutive payments of principal and interest on the loans being refinanced. Primary borrowers must be a U.S. citizen, permanent resident or resident alien with a valid U.S. Social Security Number residing in the United States. Resident aliens must apply with a cosigner who is a U.S. citizen or permanent resident. The cosigner (if applicable) must be a U.S. citizen or permanent resident with a valid U.S. Social Security Number residing in the United States. For applicants who have not attained the age of majority in their state of residence, a cosigner will be required. Citizens Bank reserves the right to modify eligibility criteria at anytime. Interest rate ranges subject to change. Education Refinance Loans are subject to credit qualification, completion of a loan application/consumer credit agreement, verification of application information, certification of borrower’s student loan amount(s) and highest degree earned.
  4. Loyalty Discount Disclosure: The borrower will be eligible for a 0.25 percentage point interest rate reduction on their loan if the borrower or their co-signer (if applicable) has a qualifying account in existence with us at the time the borrower and their co-signer (if applicable) have submitted a completed application authorizing us to review their credit request for the loan. The following are qualifying accounts: any checking account, savings account, money market account, certificate of deposit, automobile loan, home equity loan, home equity line of credit, mortgage, credit card account, or other student loans owned by Citizens Bank, N.A. Please note, our checking and savings account options are only available in the following states: CT, DE, MA, MI, NH, NJ, NY, OH, PA, RI, and VT and some products may have an associated cost. This discount will be reflected in the interest rate disclosed in the Loan Approval Disclosure that will be provided to the borrower once the loan is approved. Limit of one Loyalty Discount per loan and discount will not be applied to prior loans. The Loyalty Discount will remain in effect for the life of the loan.
  5. Automatic Payment Discount Disclosure: Borrowers will be eligible to receive a 0.25 percentage point interest rate reduction on their student loans owned by Citizens Bank, N.A. during such time as payments are required to be made and our loan servicer is authorized to automatically deduct payments each month from any bank account the borrower designates. Discount is not available when payments are not due, such as during forbearance. If our loan servicer is unable to successfully withdraw the automatic deductions from the designated account three or more times within any 12-month period, the borrower will no longer be eligible for this discount.
  6. Co-signer Release: Borrowers may apply for co-signer release after making 36 consecutive on-time payments of principal and interest. For the purpose of the application for co-signer release, on-time payments are defined as payments received within 15 days of the due date. Interest only payments do not qualify. The borrower must meet certain credit and eligibility guidelines when applying for the co-signer release. Borrowers must complete an application for release and provide income verification documents as part of the review. Borrowers who use deferment or forbearance will need to make 36 consecutive on-time payments after reentering repayment to qualify for release. The borrower applying for co-signer release must be a U.S. citizen or permanent resident. If an application for co-signer release is denied, the borrower may not reapply for co-signer release until at least one year from the date the application for co-signer release was received. Terms and conditions apply.

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