What to Do if Your Employer Doesn’t Pay You on Time

The facts are simple: it is illegal for your employer to not pay you on time. Under the Department of Labor’s Fair Labor Standards Act and the Massachusetts Wage Act, an employer must pay an employee when payment is due — whether that’s once a month, every two weeks, or in some cases, as frequently as every day, depending on what state you live in and your profession.  Violation of these laws is sometimes referred to as "wage theft" because, by failing to pay you what you are supposed to be paid for your work, the employer is in effect stealing your wages.

In Massachusetts, employees must be paid weekly or biweekly (note: regulations are different for union workers, who can be paid less frequently depending on union negotiations). Massachusetts law also requires employers to provide earned sick time for their employees; this includes part-time and temporary employees.
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In Massachusetts, employees must be paid within six days of the end of the payroll period, in order for payment to be timely under the Wage Act. If you are fired or laid off, you must also be paid your final paycheck- including payment for any accrued but unused vacation time- on the day of termination.   If you resign or quit, you still need to be paid these amounts, but your employer can make that payment in the next regularly scheduled payroll instead of the day of resignation.

It is illegal for your employer to retaliate against you for asking to be paid appropriately under the law, or even for filing a complaint in court or with the Attorney General.  

If an employer withholds your wages, it’s a serious offense that not only breaks the law but causes stress and anxiety for you, the employee. There is a reason the laws are so strict, and impose such severe penalties on employers- we recognize that all workers depend on their wages to live their own lives, pay their bills, and take care of their families, and that it is not right or fair that the employer who controls the payroll can get the benefit of your time without paying you fairly.

Here’s what wage theft looks like, and what you can do about it if it happens to you.

Some Common Examples of Problems with Unpaid Wages

Most employers try to do the right thing in terms of their workers, and make every effort to comply with the wage and hour laws.  Sometimes, however, either a lack of information, misunderstanding of the rules, or cash flow pressures on a business lead to violations of those laws.  Here are some examples of common errors that we see in paying wages:

• Not paying time and a half for hours worked over 40 in a work week for a non exempt employee;
• Not paying the correct amount of sales commissions, or paying commissions on a monthly or quarterly basis instead of on time per the Wage Act;
• Not paying all final wages and unused vacation upon termination or resignation;
• Withholding wages to offset some debt the employer believes is owed by the employee, or to pay for an expense that should be borne by the employer; and
• Not paying for travel time between work locations during the work day.

Request to See the Employer’s Policy

If you’re not paid on time, or think you should have been paid for sick time and were not, request to see the employer’s policy, which includes information about sick leave, vacation, personal leave, holidays and work hours. The policy will help determine whether there has been a violation of terms of employment or not.

Make Sure It’s Not a Technical Issue

Before you file a formal complaint, do one more thing: Make sure a technical error hasn’t caused the issue by contacting your manager and payroll department. Payroll could have made a technical mistake and the whole ordeal could be an unfortunate, embarrassing accident.

While an accident is unprofessional and still doesn’t make the withheld pay justified, technical errors can often be cleared up quickly in-house with little fuss.  And, even though you are absolutely protected from retaliation for pursuing a wage claim, if you can get the situation resolved without putting strain on the employment relationship, it is worth trying to do so.

File a Complaint with the Attorney General

If all signs lead to withheld pay which you haven’t been able to sort out with your employer, file a formal complaint with the Massachusetts Attorney General’s Office. They will either investigate your complaint or issue you a “right to sue” letter, which gives you the right to bring a private action to recover your wages and attorneys’ fees.  It is important to know that, if your employer does not make it right and pay you what you are owed, you cannot bring a civil lawsuit to collect your wages unless you have first filed this form with the Attorney General's Office.  If you make it clear in your complaint that you are seeking a "right to sue" letter, you should get that letter in the mail within a few weeks. 

You can fill out this form without the help of a lawyer, but it is a good idea to contact an attorney as soon as you think you have a problem with unpaid wages.  Understand that if your employer fails to pay you, and you get a court ruling awarding you your unpaid wages, your employer will also have to reimburse you for anything you have paid to an attorney to recover your wages.  They will also be required to pay you three times the wages you were owed, unless they pay you before you file a complaint.
 
Usually, these situations are resolved after a lawsuit is filed.  Because of the possibility of triple damages and attorneys' fees, most employers are willing to make you whole for your missed wages once they realize the potential liability.
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Being a victim of withheld pay is demeaning and stressful. If your employer hasn’t paid you on time — or has withheld funds, intentionally or unintentionally — and the situation hasn’t been quickly and amicably resolved, it’s time for the experts to step in and fight for you. We have helped hundreds of people get paid after wages, commissions, or vacation time was wrongfully withheld from them.  Call the loyal team at SLN Law today!

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About slnlaw

We are a Massachusetts law firm focused on business law, employment law, and estate planning. Our team includes attorneys with large law firm experience, public service experience, experience working with small businesses on a wide variety of matters, an attorney with an advanced degree (LLM), and a former clerk to the Massachusetts Supreme Judicial Court.  Attorney and founder Emily Smith-Lee has been named to the Massachusetts Super Lawyers list every year since 2013, and was recently named a 2018 Lawyer of the Year by Massachusetts Lawyers Weekly.  Our lead estate planning attorney Jenna Ordway has been recognized as a top estate planning attorney, and has published a book about estate planning in Massachusetts.
 
What We Do

• Employment Law: We advise both businesses and individuals about Massachusetts and federal employment laws, and represent them as needed in litigation if a lawsuit cannot be avoided. 
• Business Law: In addition to providing advice on employment matters and defense of employee lawsuits, we can help you set up your new business, review your agreements with vendors and customers, resolve or litigate business disputes, and much more. 
• Estate Planning: We provide customized plans for individuals and families to help minimize your estate tax liability, protect and preserve your assets, and ensure that the people in your life are taken care of the way that you want.  We can help you with wills and trusts, planning for a child with special needs, planning for the cost of long term care, and more.

​We also have an extensive network of other professionals, some lawyers in other practice areas and others who are non-lawyer professionals who offer services that our clients frequently need.  If the problem you need solved is not one that we handle, we are happy to provide a referral to someone we know you can trust.

Testimonials

"Emily, a chief partner, and the two other lawyers who worked on my case were extremely competent and approachable. They were responsive to inquiries and they thoughtfully explained, as needed, complex legal terms. I was very well represented at each stage of a protracted legal case against a major national firm."  Brian R

"It was a pleasure working with Emily Smith-Lee on a business matter. She willingly shares her expertise and always listens to her clients' concerns. Emily's caring demeanor puts people at ease immediately. The outcome of my experience was quite favorable. I would highly recommend them."  Camille B.

​"Emily is an incredible resource of knowledge on employment law. She helped guide us on how to structure our employee classifications and made adjustments to our consulting agreements so our business is better protected and positioned. She's both law-savvy and business minded - great asset to have when launching/growing a business."  Diana B.

"SLN represented me in a complicated employment-related dispute. What could have been a prolonged nightmare for me was handled swiftly and skillfully, and with fairness and dignity."  Smita N.

​"Previously, I spoke with a couple other lawyers and I did not feel comfortable with their approach prior to calling Emily. Jenna did an excellent job in assessing what I wanted to accomplish and completed my will, trust and other documents in a very short time. I am so happy I made the right choice in choosing slnlaw as my estate team."  Evelyn W.

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