My Employer Paid Me Late — What the Law Says, in Plain Words

What federal law does: the FLSA’s basic requirements

DOL’s elaws Fair Labor Standards Act Advisor lists the FLSA’s basic requirements this way:

• “Payment of the minimum wage”
• “Overtime pay for time worked over 40 hours in a workweek”
• “Restrictions on the employment of children”
• “Recordkeeping”

DOL’s Handy Reference Guide to the FLSA states the same scope in one sentence: “The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in Federal, State, and local governments.”

The Guide adds: “The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) administers and enforces the FLSA with respect to private employment, State and local government employment, and Federal employees of the Library of Congress, U.S. Postal Service, Postal Rate Commission, and the Tennessee Valley Authority.”

On the amounts, the Guide states: “Covered, nonexempt workers are entitled to a minimum wage of $7.25 per hour effective July 24, 2009.” And: “Nonexempt workers must be paid overtime pay at a rate of not less than one and one-half times their regular rates of pay after 40 hours of work in a workweek.”

On hours worked, the Guide states: “Covered employees must be paid for all hours worked in a workweek.”

The federal payday rule, in DOL’s own words

The Handy Reference Guide states the rule in one sentence: “Wages required by the FLSA are due on the regular payday for the pay period covered.”

The elaws FLSA Advisor states the same sentence: “Wages required by the FLSA are due on the regular payday for the pay period covered.”

In plain words, the federal rule names a day: the regular payday for the pay period in which the work was done. The rule is about wages the FLSA requires. The next sections state what the FLSA does not do, because that is where state law enters.

What federal law does not do: how often pay must come

How often pay must come — weekly, every two weeks, twice a month, or once a month — is not one of the FLSA basic requirements DOL lists above. DOL instead publishes a separate table of state payday requirements, described in the next section. That is why this page says: pay frequency is a state-law question, and the federal rule is the regular-payday rule stated above.

DOL also lists employment practices the FLSA does not regulate. The Handy Reference Guide states: “While the FLSA does set basic minimum wage and overtime pay standards and regulates the employment of minors, there are a number of employment practices which the FLSA does not regulate.” Its list of things the FLSA does not require includes, at item 5: “a discharge notice, reason for discharge, or immediate payment of final wages to terminated employees.”

The Guide states one more limit, word for word: “The FLSA does not provide wage payment or collection procedures for an employee’s usual or promised wages or commissions in excess of those required by the FLSA. However, some States do have laws under which such claims (sometimes including fringe benefits) may be filed.”

DOL’s worker FAQ states the same limit: “The FLSA does not provide wage payment or collection procedures for an employee's usual or promised wages or for commissions in excess of those required by the FLSA.” It adds: “However, some states do have laws covering some of these issues, such as meal or rest periods, or discharge notices.”

In plain words: if the pay at issue is more than the FLSA itself requires — for example, promised wages above the FLSA amounts — DOL says the FLSA provides no payment or collection procedure for the extra amount, and some states have laws under which such claims may be filed.

State payday rules: DOL’s table, in DOL’s own framing

DOL’s Wage and Hour Division publishes a page headed “State Payday Requirements.” The version read for this page is dated January 1, 2020. It is a table. Its columns are headed “Weekly,” “Bi-weekly,” “Semi-monthly,” and “Monthly,” and it marks, state by state, which of those schedules each state’s requirement uses.

Read in DOL’s own framing, the table shows this much, and this page states no more than this: your state’s rule may be weekly, every two weeks, twice a month, or monthly, depending on the state and the kind of job. DOL’s footnotes to the table show that the schedule can turn on the kind of work — one footnote states, for two states it names, that the “Frequency of payday depends on the occupation,” and another states a weekly payday for manual workers in the state it names, with a semi-monthly payday on approval for manual workers and for clerical and other workers.

This page does not copy out the table state by state, and it prints no state’s late-pay penalty, waiting-time penalty, or deadline figure. DOL closes the table with this direction, word for word: “The Wage and Hour Division tries to ensure that the information on this page is accurate but individuals should consult the relevant state labor office for official information.”

So for a question about a state payday rule, the office DOL points to is the relevant state labor office. Nothing on this page stands in for what that office says about its state.

If the late pay is a last paycheck

DOL has a separate page headed “Last Paycheck.” It states the federal point first: “Employers are not required by federal law to give former employees their final paycheck immediately. Some states, however, may require immediate payment.”

It then states what to do, word for word: “If the regular payday for the last pay period an employee worked has passed and the employee has not been paid, contact the Department of Labor's Wage and Hour Division or the state labor department.”

And it adds: “The Department also has mechanisms in place for the recovery of back wages.”

In plain words: federal law does not require the final paycheck to be handed over at once. Some states may require immediate payment — that is a state rule, stated by the state. And DOL’s stated trigger for contacting WHD or the state labor department is that the regular payday for the last pay period has passed and the pay has not come.

Records: what the employer must keep, and what a worker can keep

On employer records, DOL’s FLSA questions-and-answers page states: “The FLSA does require that employers keep accurate records of hours worked and wages paid to employees. However, the FLSA does not require an employer to provide employees pay stubs.”

The Handy Reference Guide lists what must be kept for an employee subject to the minimum wage provisions, or to both the minimum wage and overtime pay provisions. The list includes “total hours worked each workday and each workweek,” “total wages paid each pay period,” and “date of payment and pay period covered.”

On a worker’s own records, DOL’s worker FAQ gives this guidance for the case where there is no record of hours or pay: “you can start keeping one yourself. Every day you work, write down the time you start and the time you finish. Write down if you took time for a meal break and how long the break was. Write down every time you get paid, with the date and how much pay you received.” The same answer adds: “If you have an Android phone or iPhone, you could also download our free DOL-Timesheet App to track your regular work hours, break times, and overtime hours.”

Steps DOL states, if a payday has passed

DOL’s How to File a Complaint page sets out a complaint process in three steps. Step one is headed “Gather Information”: “Gather information you will need to file your complaint. While third-party complainants may not be able to provide all the information needed, the more information made available the better we can address concerns raised.” Step two is headed “How to File”: “Call 1-866-487-9243, or for general questions reach out to us online.” Step three is headed “We Work with You”: “We will work with you to answer your questions and determine whether an investigation is the best course of action.”

A practical first step before any complaint is to ask payroll when the pay will come, and to keep your own record of hours and of each payment, as in the section above. This page states that as a practical step only. It is not a rule DOL states, and it decides nothing about any one case.

DOL’s worker FAQ states who may file, in its own words: “While there are many workers that may be exempt from some provisions of the law, an employee covered by the FLSA who provides information that demonstrates the probability that they have not been paid the required federal minimum wage of $7.25 per hour or overtime (1½ times the regular rate of pay for hours worked in excess of 40 in a work week) may file a complaint with the Wage and Hour Division.”

The same FAQ states the cost: “There are no charges to file a complaint or for the Wage and Hour Division to conduct an investigation. The Department of Labor is a federal agency and does not charge workers or employers for its services.”

It states the help line this way: “You can call or visit any Wage and Hour Office to ask about the laws or file a complaint. You can also call our toll-free help line: 1-866-4USWAGE (1-866-487-9243)” It gives the hours as Monday to Friday 8:00 a.m. to 4:30 p.m. local time, with hours varying by region, and calls on nights, weekends, and holidays answered by the DOL National Contact Center.

On privacy, the FAQ states: “All discussions with the Wage and Hour Division are confidential. All complaints are confidential; the name of the complainant and the nature of the complaint are not disclosed.” It names two exceptions only: when it is necessary to reveal a complainant’s identity, with their permission, to pursue an allegation, or when the Wage and Hour Division is ordered to reveal information by a court.

DOL’s complaint page states the same protection and the protection against retaliation: “Many investigations are initiated by complaints, which are confidential. The name of the complainant, the nature of the complaint, and whether a complaint exists may not be disclosed. An employer cannot retaliate against a worker for exercising their rights, filing a complaint or cooperating with an investigation.”

The Handy Reference Guide states the retaliation rule this way: “Employees who have filed complaints or provided information cannot be discriminated against or discharged on account of such activity.”

DOL’s complaint page also describes how an investigation ends: “We hold a final conference with the employer and/or the employer’s representative to discuss any violations found and how to correct them. If back wages are owed to employees, the investigator will request payment of back wages.” And: “If you have questions or concerns, you can call us at 1-866-487-9243 or visit dol.gov/agencies/whd. You will be directed to the nearest WHD office for assistance.”

For a state payday rule, DOL’s Last Paycheck page points to the second office as well: the state labor department. DOL’s worker FAQ states why that office matters: “Yes, there are state labor agencies throughout the country that enforce state labor laws.”

Back wages and liquidated damages, only as DOL words them

This section is kept inside the scope DOL’s own words give it: minimum wage and overtime violations. DOL does not word these remedies as a penalty for every late paycheck, and this page does not widen them.

The Handy Reference Guide states, under “Enforcement Through Legal Remedies”: “The FLSA allows the Department of Labor (“Department”) or an employee to recover back wages and an equal amount in liquidated damages where minimum wage and overtime violations exist.”

Under “Administrative procedures,” the Guide states: “The Department is authorized to supervise the payment of unpaid minimum wages and/ or unpaid overtime compensation owed to any employee(s).”

Under “Litigation procedures,” the Guide states: “The Department may file suit on behalf of employees for back wages, an equal amount in liquidated damages, and civil money penalties where appropriate.” And: “An employee may file a private suit to recover back wages, an equal amount in liquidated damages, plus attorney’s fees and court costs. In such a case, the Department will not seek the same back wages and liquidated damages on that employee’s behalf.”

The elaws FLSA Advisor lists the same recovery methods for “unpaid minimum and/or overtime wages”: “1. Wage and Hour may supervise payment of back wages. 2. The Secretary of Labor may bring suit for back wages and an equal amount as liquidated damages. 3. An employee may file a private suit for back pay and an equal amount as liquidated damages, plus attorney's fees and court costs. 4. The Secretary of Labor may obtain an injunction to restrain any person from violating the FLSA, including the unlawful withholding of proper minimum wage and overtime pay.”

The Advisor adds a limit: “An employee may not bring suit if he or she has been paid back wages under the supervision of Wage and Hour or if the Secretary of Labor has already filed suit to recover the wages.”

DOL’s worker FAQ states the Department’s authority the same way: “The FLSA gives the Department of Labor the authority to recover back wages and liquidated damages (to be paid to employees), and to assess civil money penalties (to be paid to the government), in instances of minimum wage, overtime, and other violations.” This page prints no civil money penalty amount. DOL’s Handy Reference Guide directs readers elsewhere for current penalty amounts, and no amount is stated here.

Time limits DOL states

The Handy Reference Guide states: “Generally, a 2-year statute of limitations applies to the recovery of back wages and liquidated damages. A 3-year statute of limitations applies in cases involving willful violations.”

DOL’s worker FAQ states the same limits and what they mean in practice: “The FLSA contains a two-year statute of limitations for non-willful violations and a three-year statute of limitations for willful violations. Generally, this means that we will look back over the past two years to determine whether there are any wages owed to employees.” It adds: “To ensure we can complete our investigation before the statute of limitations expires, employees should file complaints with the Wage and Hour Division as soon as possible.”

Those limits are printed here exactly in the scope DOL gives them: the recovery of back wages and liquidated damages under the FLSA. This page does not state any state deadline, and it does not turn those federal limits into a deadline for any other kind of claim.

What this page does not cover

This page covers only what the DOL sources below say, in general, about when wages the FLSA requires are due, what the FLSA does not do, and the state-payday framing DOL itself publishes. It does not cover any one state’s payday deadline, any one state’s late-pay or waiting-time penalty, or any one person’s pay. It does not say whether any real late payment was lawful or unlawful — the agencies’ pages state the general rules, and applying them to a real case is not something this page does.