In a number of instances, I hear of our countrymen lament about the way their previous employers took advantage and exploited them knowing fully well their lack of immigration status, by not being paid the minimum wage or overtime pay, even if they are rightfully entitled to the same. Many of them simply continue to work under such unfair conditions and accept their unfortunate fate. Many of them generally feel powerless to do something about it. The worse part about it is that their services were ultimately terminated, for no apparent reason at all.
The Fair Labor Standards Act (FLSA) requires all employers to keep/maintain employment records for each non-exempt worker containing mandatory/identifying information about the employee, hours worked and the wages earned. This law requires that this information to be accurate and must contain the following, to wit:
a) Employer’s full name and SSS number;
b) Address, including zip code;
c) Birth date, if younger than 19 years old;
d) Sex and occupation;
e) Time and day of week when employee’s workweek begins;
f) Hours worked each day;
g) Total hours worked each workweek;
h) Basis on which employee’s wages are paid (e.g., “$9/hour”, “$440/week” or “piecework”)
i) Regular hourly pay rate;
j) Total daily or weekly straight-time earnings;
k) Total overtime earnings for the workweek;
l) All additions to or deductions from the employee’s wages;
m) Total wages paid each pay period;
n) Date of payment and the pay period covered by the payment.
These employment/payroll records must be kept for at least 3 years and records on which wage computations are based, should be retained for 2 years, i.e., time cards, wage rate tables, work and time schedules and records of additions to or deductions from wages. Many employees work on a fixed schedule from which they seldom vary. If for any reason, the worker is on a job for a longer or shorter period of time, the employer must record the same, on an exception basis.
Many employers simply do not diligently keep such employment records. As such, potential lawsuits against them for unpaid wages, overtime and/or wage and hour disputes will be rather difficult to defend. Such is the case of many of our countrymen especially caregivers, restaurant workers, etc., whose services are not compensated fairly or worse, are taken advantaged of by their previous employers by not being paid the minimum wage or any overtime pay due to their lack of legal immigration status. Any employee who has been treated unfairly, regardless of his/her legal immigration status, has a statutory period of 2 years within which to file a lawsuit to recover any such unpaid minimum or overtime wages. In addition to the back pay, the aggrieved employee is also entitled to an equal amount for liquidated damages plus attorney’s fees and court costs. In case of willful violations, a 3-year statute of limitations applies.
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- Published in Atty. Ramoncito P. Ocampo
- Written by By Atty. Ramoncito P. Ocampo
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