What to Do After Wage Theft

Reviewed by Nola Stetson (NS), Editor-in-Chief — Wage Theft Practice. Updated May 2026.

Discovering that your employer has been underpaying you is disorienting. The steps you take in the days and weeks that follow determine how strong your claim will be and how much you can recover. Evidence that exists today may not exist in a month — records get destroyed, employees leave, and statutes of limitations keep running.

Step 1: Document Everything Before Anything Changes

Your first priority is preserving evidence while you still have access to it. Do this before you raise the issue with your employer, before you leave the job if you’re considering resignation, and before you file any formal complaint.

Gather and secure copies of:

• All pay stubs and earnings statements going back as far as possible (the FLSA allows recovery for two to three years)
• Bank statements showing direct deposit amounts for the same period
• Your own time records — calendar entries, texts, emails, phone records that note when you started and stopped working
• Your employment contract, offer letter, and any written agreement about your pay rate, classification, or job duties
• Your employee handbook, particularly sections on timekeeping, meal breaks, overtime policies, and classification
• Any written communications about hours or pay (emails, texts, Slack messages, formal HR correspondence)
• Names and contact information for coworkers who experienced the same violations or who witnessed yours

Step 2: Calculate Your Loss

Use the wage theft calculator to estimate your unpaid wages and potential damages. Track each week separately if your hours or pay rate varied. Run the calculation for both the two-year and three-year FLSA lookback periods to understand the range, and check whether your state has a longer lookback under state wage law (many states provide three to six years).

Be conservative in your estimates. You need your time records to support the claimed hours. A rough total based on clear memory is more credible than a precise number that will be challenged if you cannot document it hour by hour.

Step 3: Decide Whether to Raise the Issue Internally

Raising the issue with HR or management is not required but sometimes resolves clear errors quickly — particularly for straightforward calculation mistakes like a payroll system glitch that was consistently undercounting hours. If you do raise it internally:

• Do it in writing (email) so you have a record of when you raised it and what the employer said in response.
• Be factual and specific: “My time records show I worked 47 hours in week X but was paid for 40.”
• An internal complaint is protected activity under the FLSA’s anti-retaliation provisions. If adverse action follows, that is a separate violation.
• Do not sign any settlement agreement, release, or waiver before consulting an attorney. FLSA claims require either court approval or DOL supervision to be validly waived — an employer-drafted document you sign privately may not be enforceable as a release.

Step 4: Choose Your Filing Path

Three options, depending on your situation:

• DOL Wage and Hour Division: Free, no attorney required, covers all similarly situated employees. File at dol.gov/agencies/whd. Best when violations are widespread and you want WHD to investigate and collect for everyone.
• State labor commissioner: Often faster than federal processes, applies state law that may provide a longer lookback and higher penalties. File directly with your state’s labor agency.
• Private lawsuit: Most control over strategy and timing. Required for willfulness arguments and collective actions. Attorney fees are recoverable from the employer. Free initial consultations are standard for FLSA cases. Best for significant individual damages or systemic violations across many coworkers.

Step 5: Watch for and Document Any Retaliation

After filing a complaint or even raising a wage issue internally, document any changes in your treatment at work. Retaliation can be obvious (termination) or subtle (reduced hours, schedule changes that affect your income, negative performance reviews that didn’t exist before your complaint). Write down dates, what was said or done, and who was present. Keep records outside your work accounts — employer email systems can be cut off without notice.

Retaliation in response to a protected wage complaint is a separate FLSA violation. If you experience retaliation, contact an employment attorney immediately — the anti-retaliation claim may be as valuable as the underlying wage claim.

See the full claims process guide for more on each filing option, or return to the calculator to estimate your recovery.