Back pay is a remedy for wage violations. An order for back pay requires that the employer make up the difference between what the employee was paid and the amount he or she should have been paid. Among other Department of Labor programs, back wages may be ordered in cases under the Fair Labor Standards Act (FLSA) on the various federal contract labor statutes.
Methods which the FLSA provides for recovering unpaid minimum and/or overtime wages include.
- The Wage and Hour Division may supervise payment of back wages.
- The Secretary of Labor may bring suit for back wages and an equal amount as liquidated damages.
- An employee may file a private suit for back pay and an equal amount as liquidated damages, plus attorney's fees and court costs.
- 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.
An employee may not bring suit under the FLSA if he or she has been paid back wages under the supervision of the Wage and Hour Division or if the Secretary of Labor has already filed suit to recover the wages.
Generally, a two-year statute of limitations applies to the recovery of back pay. In the case of willful violations, a three-year statute of limitations applies.
Back wages also are available for underpayments to employees under the Davis-Bacon and Related Acts and the Service Contract Act, among other laws enforced and administered by the Wage and Hour Division.