Fired for Complaining About Unpaid Wages in New York? Your Rights

If you asked your boss about missing overtime, a short paycheck or tips that never reached you, and then lost your job, your hours or your shifts, you may have two claims, not one: the wages you were owed, and a separate claim for the retaliation.

New York’s Labor Law says an employer can’t fire, threaten, penalize or retaliate in any other way against a worker for complaining about a pay violation. The complaint can be made to your employer, to the New York State Department of Labor or to the Attorney General. It doesn’t have to name a law, and you don’t have to turn out to be right. It is enough that you reasonably and in good faith believed something was wrong.

Federal law, the Fair Labor Standards Act, has its own protection. Since 2015 the Second Circuit, the federal appeals court that covers New York, has held that it covers complaints made to the employer, spoken or written, as long as they are clear enough that the employer would understand you were asserting your rights. A complaint to the government isn’t required.

Retaliation is anything your employer does to punish you for speaking up. Common examples:

• Firing you, or telling you not to come back.
• Cutting your hours or shifts, moving you to worse ones, or demoting you.
• Threats, such as telling you that you’ll be let go if you keep asking.
• Threatening to call immigration, or reporting or threatening to report your immigration status. New York’s Labor Law names this as retaliation.
• Punishing you for filing a complaint, starting a case, or testifying in an investigation or a case about wages.

Timing matters. When the firing or the cut in hours comes soon after the complaint, that can be strong evidence of why it happened. Employers often give another reason, such as lateness or slow business, so the dates, the messages and what your coworkers saw all matter.

Your immigration status doesn’t change your right to be paid. The New York Attorney General’s office says minimum wage and overtime protections apply to workers in New York regardless of immigration status.

Under New York law, a court can order your job back or front pay instead, the pay you lost, other damages, liquidated damages of up to $20,000, and your attorney’s fees and costs. The Department of Labor can also fine the employer between $1,000 and $10,000, or up to $20,000 if it broke the same rule in the last six years.

Under federal law, a court can order reinstatement and the wages you lost, plus an equal amount as liquidated damages, and your attorney’s fees.

And the wages themselves. The retaliation claim is separate from the pay you were owed in the first place. Under New York law you can usually go back six years for unpaid minimum wage and overtime, plus liquidated damages equal to the unpaid amount and interest. More on that claim: unpaid wages and overtime in New York. If you worked in a restaurant, see what New York law says about restaurant pay and tips.

The deadline is shorter than for unpaid wages. A retaliation claim under New York’s Labor Law generally has to be brought within two years. Filing a complaint with the Department of Labor pauses that clock while the Department handles it. A federal retaliation claim generally has two years, or three if the violation was willful. Don’t wait to find out which one applies to you.

1. Write down the dates: when you complained, to whom, how, and what happened after.
2. Save the evidence: texts, WhatsApp messages, schedules, pay stubs and photos of time sheets. Keep copies somewhere your employer can’t reach.
3. List your witnesses: the coworkers who saw or heard what happened.
4. Don’t sign anything yet: no release, separation agreement or statement about your pay before a lawyer reads it.
5. Ask for your final pay in writing if it hasn’t come.

Michael Samuel has practiced law in New York since 1993 and has been counsel in more than 500 federal wage and hour cases, most of them for workers. Court-approved wage results for workers are on our results page. Prior results do not guarantee a similar outcome.

When you call, we go over what you complained about, what happened after, and what you were paid against the hours you worked, so we can tell you whether you have a retaliation claim, a wage claim or both. Wage cases are handled on contingency, so a first conversation costs nothing. Call (212) 563-9884. Hablamos español: lea este artículo en español.