Wage Theft Protection Law: Do Government Workers Qualify?

Wage theft is a serious issue in the United States, with billions of dollars in wages stolen from employees every year. To combat this, many states have implemented wage theft protection laws, which require employers to provide written notices to employees containing specific information about their compensation and benefits. These laws also outline penalties for employers who violate wage and hour laws, such as failing to pay overtime or minimum wage. While these laws generally apply to all private sector employers, there are exceptions for certain types of employees, such as those who are exempt from overtime pay or those covered by collective bargaining agreements. So, does the wage theft protection law apply to governmental employees? The answer may vary depending on the specific state or local law, but in general, governmental employees may be exempt from the wage theft protection law, as they are typically employed directly by the state or a political subdivision.

Does the Wage Theft Protection Act apply to governmental employees?

The Wage Theft Protection Act of 2011 (also known as Assembly Bill 469 or AB 469) applies to all private-sector employers in California. This means that governmental employees are not covered by the Act.

The Act requires employers to provide each employee with a written notice containing specified information at the time of hire. This includes details such as the rate of pay, the basis of wage payment (e.g. whether paid by the hour, shift, day, etc.), the designated payday, and the employer's intent to claim allowances as part of the minimum wage. The notice must be provided in the language that the employer normally uses to communicate employment-related information.

While governmental employees are not covered by the Wage Theft Protection Act, they may still have some protection under other laws or collective bargaining agreements. Additionally, it is important to note that charter schools, private schools, and not-for-profit corporations are considered private entities and are therefore covered by the Act.

What is the Wage Theft Protection Act?

The Wage Theft Protection Act is a law that aims to protect workers from wage theft and ensure they are properly informed about their rights to fair pay. The Act requires employers to provide written notice to employees of their wage rates, the basis of those wages, and other relevant information such as the employer's name and contact details. This notice must be provided in the language normally used to communicate employment-related information to the employee and must be given at the time of hiring, with any changes communicated within a specified time frame.

In California, the Wage Theft Protection Act (AB 469), which came into effect on January 1, 2012, amends existing laws and adds new requirements. It criminalizes willful violations for non-payment of wages after a court judgment or final administrative order and requires restitution to employees, including a civil penalty for failure to pay minimum wages. It also extends the time period for obtaining judgments for the collection of penalties and enhances bond requirements for employers with convictions for non-payment of wages.

The New York Wage Theft Prevention Act (WTPA), which came into effect in 2011, requires employers to provide written notice to each new employee of their wage rates, overtime pay rates, payday, and other payment information. Employers must also provide wage statements or pay stubs to employees on each payday, detailing gross and net wages, credits and allowances, and any overtime hours worked.

At the federal level, the Wage Theft Prevention and Wage Recovery Act, introduced in 2021, requires employers to make initial and modified disclosures to employees about the terms of their employment, provide regular pay stubs, and make final payments for uncompensated work within 14 days of an employee's termination. It establishes new and increased civil and criminal penalties for violations of overtime or minimum wage requirements and allows for the referral of employers who engage in wage theft to the Department of Justice for criminal prosecution.

What are the penalties for violating the Wage Theft Protection Act?

The penalties for violating the Wage Theft Protection Act vary depending on the jurisdiction. Here are some examples:

New York

The New York Wage Theft Prevention Act imposes penalties on employers who fail to provide written notices of wage rates and pay stubs to their employees. The penalties for non-compliance include:

• A fine of up to $10,000 per employee for failing to provide written pay notices.
• A fine of $50 for every day the notice is not provided, up to a maximum of $5,000 per employee.
• A fine of up to $5,000 per employee for failing to provide pay stubs.
• Increased penalties of up to $20,000 for repeat offenses within the last six years.

California

In California, the Wage Theft Prevention Act of 2011 requires employers to provide specific information to employees at the time of hire, including rate(s) of pay, designated pay day, and the basis of wage payment. Violation of this Act can result in:

• Criminal charges for willful violations of non-payment of wages after a court judgment or final administrative order.
• Restitution to the employee, in addition to a civil penalty for failure to pay minimum wages.
• Enhanced bond requirements for employers with convictions or court judgments for non-payment of wages.
• Allowing employees to recover attorney's fees and costs incurred to enforce a judgment for unpaid wages.

Federal Level

At the federal level, the Wage Theft Prevention and Wage Recovery Act, introduced in 2019, proposes to amend the Fair Labor Standards Act to strengthen penalties for wage theft and assist in the recovery of stolen wages. The proposed Act includes:

• Civil fines of up to $2,000 per employee for initial violations and up to $10,000 per employee for repeated or willful violations of wage and hour requirements.
• Criminal penalties of up to $10,000 per employee for willful violations of wage requirements, falsifying records, or violating the prohibition on retaliation against employees.
• Suspension of the statute of limitations during the investigation period by the Secretary of Labor.

What are the rights of employees under the Wage Theft Protection Act?

The Wage Theft Protection Act (WTPA) was passed in 2011 and came into effect on January 1, 2012. The Act amends existing laws and adds new requirements to protect workers from wage theft. Here are the rights that employees have under the WTPA:

• Employees have the right to receive a written notice containing specified information at the time of hire. This includes details such as the rate(s) of pay, designated pay day, the employer's intent to claim allowances (e.g. meal or lodging allowances), and the basis of wage payment (e.g. whether paid by the hour, shift, day, etc.), including any applicable overtime rates.
• The written notice must be provided in the language that the employer normally uses to communicate employment-related information to the employee. If the employee's primary language is not English, the notice must be translated accordingly.
• Employers are required to provide updates to employees regarding any changes to the information in the written notice within seven calendar days, unless the changes are reflected on a timely wage statement or provided in another writing required by law within seven days.
• Employees have the right to receive the written notice on its own form, separate from other materials that are presented at the time of hire.
• The written notice cannot be waived, and employees cannot be required to sign it. However, employers may request an optional acknowledgment of receipt from employees.
• The written notice must include all the "doing business as" names used by the employer.
• If an employee has multiple pay rates, all applicable rates must be provided in the written notice.
• Employees covered by a valid collective bargaining agreement that meets specified conditions are generally exempt from the requirement to receive the written notice.
• The WTPA establishes criminal penalties for willful violations of non-payment of wages after a court judgment or final administrative order.
• Employees have the right to restitution and civil penalties for their employer's failure to pay minimum wages.
• Employees can recover attorney's fees and costs incurred to enforce a judgment for unpaid wages.
• The WTPA extends the time period for obtaining judgments on final orders for the collection of penalties.
• The Act enhances bond requirements for employers with convictions or court judgments for non-payment of wages, including requiring an accounting of assets upon request.
• Employees can take legal action against their employer for wage theft and seek compensation for lost wages, even if their employer is not charged with a crime.

How do employees file a claim under the Wage Theft Protection Act?

The Wage Theft Protection Act of 2011 (AB 469) requires employers to provide each employee with a written notice containing specified information at the time of hire. This includes the rate(s) of pay, designated pay day, the employer's intent to claim allowances (e.g. meal or lodging allowances) as part of the minimum wage, and the basis of wage payment (e.g. whether paying by the hour, shift, day, week, piece, etc.), including any applicable rates for overtime. The notice must be provided in the language the employer normally uses to communicate employment-related information to the employee.

Employees can file a wage claim with the California Division of Labor Standards Enforcement (DLSE) if they believe they have experienced wage theft. This can be done online, by mail, or in person. The DLSE will ask for copies of documents that support the employee's claim and can illustrate how much they are owed. Some of the documents that may be needed include timesheets, paychecks/stubs, records of unpaid commissions, or notices from the employer regarding employment information (e.g. rate of pay, overtime rate, whether paid by the hour, shift, day, piece, etc.).

It is important to note that there are time limitations for filing a wage claim in California, which vary depending on the type of violation. For example, the time limit for filing a claim related to a bounced paycheck or withheld payroll/personnel records is one year, while the time limit for filing a claim related to a breach of a written employment contract is four years.

Frequently asked questions