Wage and Hour Law FAQ | The Marlborough Law Firm, P.C.

Employment law claims are subject to strict filing deadlines known as statutes of limitations, and missing them can permanently bar you from recovering compensation you're owed — regardless of how strong your case is.
For wage and hour claims specifically, the deadlines vary by law and location:

New York: Under the New York Labor Law (NYLL), workers generally have six years to file a claim for unpaid wages, minimum wage violations, or unpaid overtime.

New Jersey: Since the state's Wage Theft Act took effect in 2019, New Jersey also provides a six-year statute of limitations for unpaid wage and overtime claims.

Federal law (FLSA): Claims brought under the federal Fair Labor Standards Act generally have a shorter window — two years, or three years if the violation was willful.

Because federal and state deadlines can differ, and because certain claims (such as those involving misclassification, retaliation, or prevailing wage violations) may have their own specific rules, it's important not to assume how much time you have. The clock generally starts running from each missed or underpaid paycheck, which means older violations can fall outside the window even if more recent ones are still valid.
If you believe you've been denied wages you're owed, the safest course is to speak with an employment attorney as soon as possible — waiting can mean losing the ability to recover wages for part or all of the period you were shortchanged.

Good catch — here's the updated version with arbitration added:

What legal process applies to employment matters like administrative complaints, mediation, arbitration, or litigation?
Workers who have been denied wages generally have more than one path to recovering what they're owed, and the right one depends on the type of claim, how much is at stake, and sometimes on agreements the worker may have already signed.

Administrative complaints: Workers can file a wage claim directly with a state labor department — such as the New York State Department of Labor or the New Jersey Department of Labor and Workforce Development — or with the federal Department of Labor's Wage and Hour Division. This process doesn't require a lawsuit and can be a faster route for straightforward, individual claims, though recovery amounts and enforcement power are often more limited than what's available in court.

Mediation: In some cases, disputes are resolved through mediation, where a neutral third party helps the worker and employer reach a voluntary settlement without going to trial. Mediation can be faster and less costly than litigation, but it depends on both sides being willing to negotiate in good faith.

Arbitration: Some employers require workers to sign arbitration agreements as a condition of employment, which can require wage disputes to be resolved privately by an arbitrator rather than in court. Arbitration is generally faster than litigation but can limit a worker's ability to join a class or collective action, and the process, evidence rules, and appeal rights differ from those in a courtroom. Whether an arbitration agreement applies — and whether it's enforceable — depends on the specific language of the agreement and the circumstances of the claim.

Litigation: Many wage theft cases — especially those involving unpaid overtime, minimum wage violations, or misclassification affecting multiple employees — are pursued through civil litigation in state or federal court. This includes individual lawsuits as well as class and collective actions, which allow one or more workers to sue on behalf of similarly situated employees who experienced the same violation. Class and collective actions are often the most effective way to hold an employer accountable when wage theft affects an entire workforce, not just one person.

Which process applies to a given case depends on factors like the size of the claim, whether other employees were affected the same way, the strength of the available evidence, and whether an arbitration agreement is in place. An experienced wage and hour attorney can evaluate your situation — including reviewing any agreements you may have signed — and recommend the path most likely to recover the full amount you're owed.

It's normal to feel anxious about bringing a wage claim against a current or former employer — many workers worry about retaliation, damaged references, or strain with coworkers, and those concerns are worth taking seriously.

The good news is that the law directly protects you from retaliation for exercising your wage rights. Both federal law (the FLSA) and New York and New Jersey state law make it illegal for an employer to fire, demote, cut hours, or otherwise punish a worker for filing a wage complaint, participating in an investigation, or joining a lawsuit. If retaliation does occur, it typically gives rise to a separate legal claim of its own, often with significant additional damages.

That said, pursuing a claim is rarely instant or effortless. Cases can take months to resolve, and the process may involve gathering pay records, giving a deposition, or waiting through negotiation and, in some cases, trial. Class and collective actions — where many affected workers join together — often ease the burden on any one individual, since the legal and evidentiary work is shared across the group rather than resting on one person alone.

Most of our clients describe the process as worthwhile despite the stress, particularly once they understand their legal protections and have an attorney managing the case on their behalf. A free, confidential consultation is a good first step to understand what to realistically expect in your specific situation — including any retaliation risk — before deciding how to proceed.

When a wage theft case ends in a settlement or judgment, your attorney should walk you through exactly what it means going forward — but here's what generally applies:

The release defines what's given up. Most settlements require signing a release, which typically waives your right to sue over the specific wage claims that were part of the case. A well-drafted release is limited to those claims — it generally should not affect unrelated legal rights, such as a future workplace injury, a new instance of discrimination, or wage violations that happen after the settlement period. If you're ever unsure whether a release covers something, that's worth confirming with your attorney before signing anything, or with a new attorney if a new issue arises later.

Payment terms and deadlines matter. Settlement agreements typically specify how and when you'll be paid — a lump sum, installments, or (in a class/collective action) a claims process with its own deadline to submit a form. Missing a claims deadline in a class settlement can mean forfeiting your share, so it's important to follow through on any required steps.

Taxes apply differently depending on the type of payment. Back wages are generally taxed as ordinary wages (reported on a W-2, with standard withholding), while liquidated damages and other non-wage amounts are typically reported differently (often a 1099) and taxed as other income. Because this can affect your tax return, it's a good idea to discuss the settlement's tax treatment with a tax professional once you know the final numbers.

Retaliation protections continue even after the case ends. Your legal right to be free from retaliation for having brought a wage claim doesn't expire when the case is resolved — if an employer takes adverse action against you afterward specifically because you brought the claim, that can be a separate, actionable violation.
The specifics always come down to the language in your particular settlement or judgment, so the best source of clarity is a direct conversation with your attorney once resolution is reached — a good attorney will explain, in plain terms, exactly what you're agreeing to and what remains available to you afterward.

Christopher Marlborough has been practicing law since 2003 and has been litigating class action cases specifically since 2007. He founded The Marlborough Law Firm, P.C. in 2013 to concentrate his practice on wage theft cases. Over the course of his career, the firm has recovered more than $20 million for workers cheated out of overtime, minimum wage, and other compensation they were legally owed.

Christopher has been recognized by Super Lawyers magazine every year since 2013 — first as a Rising Star, then as a Super Lawyer — and has received awards including the Nassau County Bar Association's Lawrence Solotoff Memorial Recognition and NELA-NY's Courageous Counsel Award. He is a former Chair of the Nassau County Bar Association's Labor and Employment Committee.

Christopher serves on the executive Board of NELA-NY, the New York affiliate of the National Employment Lawyers' Association, which advocates for workers' rights and supports lawyers representing employees in employment-related matters. It focuses on professional development, legislative advocacy, and providing a legal referral service to help individuals navigate workplace issues.

He is also a co-chair of its Legislative Advocacy Committee, where he is responsible for promoting the organization's legislative agenda, which focuses on protecting and improving the New York Labor Law, as well as New York State and New york City Human Rights Laws The Legislative Committee Chair of NELA/NY is responsible for promoting the organization's legislative agenda, which focuses on protecting and improving New York State Human Rights Laws and advocating for low-wage workers.

We concentrate our practice on wage and hour cases, most commonly:

* Unpaid overtime — workers not paid time-and-a-half for hours worked beyond 40 in a week

* Minimum wage violations — pay that falls below the required state or federal minimum wage

* Exempt employee misclassification — workers wrongly labeled "exempt" from overtime based on job title rather than actual duties

* Independent contractor misclassification — workers treated as 1099 contractors when they should legally be classified as employees

* Prevailing wage fraud — underpayment on government-funded construction and public works projects

* Off-the-clock work — requiring employees to work before clocking in, after clocking out, or during unpaid breaks

* Restaurant and tipped worker violations — stolen tips, improper tip pooling, and tip credit violations

* WARN Act violations — employers failing to give the legally required advance notice before a mass layoff or plant closing

New Jersey wage and hour claims — overtime and minimum wage violations under New Jersey's Wage Theft Act
Many of these cases affect more than one worker at the same employer, so we frequently pursue them as class and collective actions, allowing groups of similarly situated employees to recover together.

The Marlborough Law Firm's primary focus is wage and hour employment law — representing workers in overtime, minimum wage, prevailing wage, and misclassification cases in New York and New Jersey, often through class and collective actions.

Christopher Marlborough founded the firm to fight both unlawful wage theft and consumer fraud. That said, wage and hour law is where we concentrate the large majority of our work and experience.

We don't handle every type of employment matter — for example, we generally don't take on cases centered on workplace discrimination unrelated to pay. If your situation falls outside our focus, we'll tell you honestly during your free consultation and, where we can, point you toward attorneys better suited to help.

We are a workers' rights law firm. The Marlborough Law Firm is a plaintiff-side employment law practice — we never represent employers. This focus means our attorneys are entirely dedicated to advocating for workers, without any conflicting relationships with businesses that could compromise that representation.

Our approach depends on the facts of each case, but we generally start by thoroughly investigating the claim — reviewing pay records, job duties, and company policies — before deciding on the most effective path forward.
In many cases, we begin with a demand letter or direct negotiation with the employer, which can sometimes resolve a claim without the time and expense of formal litigation. When negotiation isn't productive, or when a violation affects multiple employees, we're prepared to file a lawsuit in state or federal court, including as a class or collective action on behalf of similarly situated workers.

We concentrate heavily on class and collective actions because we've found them to be one of the most effective tools for holding employers accountable when wage theft affects an entire workforce rather than a single individual — they allow workers to pool their claims and evidence, which strengthens the case and can result in a larger overall recovery than pursuing the same violations one worker at a time.

Throughout the process, we keep clients informed of their options at each stage and explain the trade-offs — for example, negotiation may resolve a matter faster, while litigation may be necessary to secure the full amount owed, particularly in cases involving liquidated damages or multiple affected workers.

We handle wage theft and overtime cases on a contingency fee basis — meaning you pay nothing upfront, and we only get paid if we recover money for you. There's no hourly billing and no flat fee for taking your case.

Under this arrangement:

Your free consultation costs nothing, and there's no obligation to move forward afterward.

You owe no attorney's fees unless we win your case, whether through a settlement or a favorable judgment.
Our fee is typically a percentage of the amount recovered, which we'll explain clearly before you agree to move forward — there are no hidden costs sprung on you later.

In many wage and hour cases, the law also allows a successful worker to recover attorney's fees and costs from the employer, on top of the wages owed — meaning the employer, not you, often ends up covering some or all of the legal costs when your case succeeds.

This structure exists specifically so that cost is never a barrier to a worker holding an employer accountable — you shouldn't have to be able to afford a lawyer upfront in order to get back wages you're legally owed.

Our contingency fee covers our attorney's time and legal work on your case — there's no separate hourly charge on top of it. However, litigation itself can involve out-of-pocket costs beyond attorney time, such as:
* Court filing fees
* Costs of obtaining records (pay stubs, time records, personnel files)
* Deposition transcripts
* Expert witness fees, in cases where expert analysis is needed (for example, to calculate complex damages across a large group of workers)
* Service of process and other administrative litigation costs

In most cases, we advance these costs on your behalf as the case proceeds, and they're only recovered from your settlement or award if we win.

In many successful wage and hour cases, the law also allows these costs — along with attorney's fees — to be recovered from the employer as part of the judgment or settlement, meaning they don't necessarily come out of your share of the recovery at all.

We'll walk you through exactly what to expect regarding fees and costs during your free consultation, before you ever commit to moving forward, so there are no surprises later.

Yes — we offer a free, confidential consultation for anyone who believes they may have a wage theft claim.

There's no charge for this initial conversation, and no obligation to hire us afterward.
During the consultation, we'll listen to what happened, ask questions about your job duties, pay, and schedule, and give you an honest assessment of whether we think you have a viable claim — including telling you directly if we don't think you do, or if your situation falls outside our focus area.

You can reach us by phone at (212) 991-8960 or through the contact form on our website to schedule your free consultation.

We don't charge a retainer fee — you pay nothing upfront to hire us, since we work on a contingency fee basis.
However, we do require a written retainer agreement before formally taking on your case. This isn't a payment — it's a contract between you and the firm that spells out the terms of our representation in writing, including:
* What claims we're representing you on
* How our contingency fee is calculated
* How litigation costs (if any) are handled
* Both your rights and our obligations as your attorneys throughout the case

Signing a written retainer agreement protects you by making sure everything about the fee arrangement is clear and in writing from the start — there's nothing left to guesswork or verbal understanding. Since there's no retainer fee collected, the question of a refund doesn't apply.

We'll walk you through the agreement in plain language during or after your free consultation, and answer any questions before you sign.

We believe clients deserve to know what's happening with their case at every stage, not just when there's a settlement offer or a court date.

Direct communication with your attorney — you'll have access to speak with the attorney handling your case, not just a paralegal or case manager, when you have questions or concerns.

Updates at key milestones — we'll reach out when there are meaningful developments, such as when a case is filed, when the employer responds, when settlement discussions begin, or when a court sets important dates.

Responsive to your questions — we make it a priority to return calls and emails promptly, since we know it's stressful to feel like you don't know what's going on with your own case.

Honest expectations — wage and hour cases, especially class and collective actions, can take time, and there are often periods where a case is moving forward procedurally without dramatic news to report. We'll be upfront about realistic timelines so you're not left guessing.

If you ever feel like you haven't heard from us in a while, you're always welcome to reach out directly — we'd rather you ask than wonder.

You'll work directly with an attorney throughout your case — not just support staff. As a smaller, focused firm, we're able to give clients personal attention rather than passing you through a large, impersonal team.

Christopher Marlborough generally handles cases from start to finish personally. Depending on the needs of your case, other attorneys or staff at the firm may also be involved, but Christopher remains closely and directly involved in every case the firm takes on.

Whoever your primary contact is, they'll be someone you can reach directly with questions, and who knows the details of your case — not a call center or rotating point of contact.

We're happy to work with whatever method is easiest for you.

Phone: (212) 991-8960 — the fastest way to reach us directly, especially for time-sensitive questions.

Contact form or email: Available through our website for non-urgent questions or to schedule a consultation.

In-person meetings: Available at our office in Lynbrook, NY, for clients who prefer to meet face-to-face.

Video conference: Available for clients who prefer a face-to-face conversation without traveling to the office — a convenient option for clients located further away or with scheduling constraints.

Whatever method you use, we aim to make it easy to reach a real person — not an automated system — when you have a question about your case.

Retaliation for asserting your wage rights is illegal, and if you suspect it's happening, acting promptly and documenting everything can make a real difference.

Start documenting immediately. Keep a written log of what happened — dates, who was involved, and exactly what was said or done. Save relevant emails, texts, schedules, and performance reviews, including anything showing your work was viewed positively before you raised the wage issue.

Note the timing. Retaliation is often easiest to prove when it follows closely after a wage complaint — a sudden schedule change, discipline, demotion, or termination shortly after you spoke up is meaningful evidence, even if it isn't immediate.

Don't assume it has to be dramatic to count. Retaliation can include being cut in hours, excluded from opportunities, or subjected to new scrutiny — not just being fired.

Know that the law protects you specifically for this. Under New York Labor Law, employers are prohibited from firing, demoting, or otherwise punishing an employee for requesting unpaid wages, filing a complaint, or cooperating with an investigation — this applies whether you raised the issue with your employer directly, a coworker, or a government agency. New Jersey's Wage Theft Act provides similar protection, including a presumption of retaliation for adverse action taken shortly after a complaint.

Talk to an attorney before deciding your next move. Retaliation often strengthens rather than weakens a case — but how you respond matters. Before confronting your employer further or making decisions about your job, a free consultation can help you understand your options and avoid inadvertently undermining your claim.
You are never required to just accept retaliation quietly — the law exists specifically to protect workers who speak up.

Here's a draft:

What are my rights regarding unpaid wages, overtime, or misclassification?
Federal and state law provide strong protections for workers, and you may be entitled to recover more than just the wages you were originally owed.

Unpaid wages: You have the right to be paid for all hours you worked, including time spent on required tasks before or after your scheduled shift, and during breaks that weren't truly free of work duties. Employers cannot make illegal deductions from your pay, and cannot simply fail to pay you for hours worked.

Overtime: Under the federal Fair Labor Standards Act (FLSA) and New York and New Jersey state law, most non-exempt employees must be paid one and a half times their regular rate for any hours worked beyond 40 in a workweek. Being paid a salary does not automatically make you exempt from overtime — your actual job duties must also meet strict legal requirements for a specific exemption to apply.

Misclassification: Employers sometimes misclassify workers — either as "exempt" from overtime when their duties don't qualify, or as independent contractors when they're legally employees — to avoid paying overtime, minimum wage, and other benefits. Misclassification is illegal regardless of what your job title says or what paperwork you signed.

What you may be entitled to recover: If your rights were violated, you may be able to recover:

Unpaid Wages -- The full amount of unpaid or underpaid wages, Liquidated damages — often equal to the amount of wages owed, effectively doubling your recovery under federal law, and up to 200% under New Jersey's Wage Theft Act, attorney's fees and litigation costs, in many cases paid by the employer rather than deducted from your recovery.

Time limits apply. These claims are subject to statutes of limitations — generally six years under New York and New Jersey state law, but shorter under federal law — so it's important not to wait too long to explore your options.

If any of this sounds like what's happening to you, a free consultation can help you understand whether you have a claim and what you may be entitled to recover.

Here's a draft:

What's the difference between being an employee and an independent contractor?
The distinction matters enormously, because independent contractors don't receive the legal protections employees do — including minimum wage, overtime pay, and eligibility for workers' compensation and unemployment insurance. Importantly, how you're classified isn't determined by your job title, what you're called on paper, or even what you signed — it depends on the actual nature of the working relationship, and the law, not the employer, decides which test applies.
New Jersey applies the strict "ABC Test." A worker is only a true independent contractor if the employer can show all three of the following:
(A) The worker is free from the employer's control and direction in performing the work, both under contract and in practice
(B) The work is performed outside the usual course of the employer's business, or outside all of the employer's places of business, and
(C) The worker is customarily engaged in an independently established trade, occupation, or business of their own.

If an employer can't establish all three, the worker must legally be classified as an employee — this test intentionally makes it hard to justify contractor status.

New York and federal law generally use a more flexible, multi-factor "economic realities" test, looking at things like how much control the employer exercises over the work, whether the worker can realize a profit or loss, how integral the work is to the employer's business, and whether the relationship is ongoing or project-based. No single factor is decisive — courts weigh the whole picture.

Common red flags of misclassification include being paid on a 1099 while working set hours dictated by the employer, using company equipment, performing the same work as classified employees, or having no meaningful ability to work for other clients.

If you've been classified as an independent contractor but feel like you're treated as an employee in practice, that mismatch is worth having evaluated — misclassification is one of the most common forms of wage theft we handle.

Here's a draft, incorporating the Epic Systems v. Lewis precedent, which is directly relevant here:

What if I was required to sign an arbitration agreement saying I would not sue my employer in court?
Arbitration agreements are common, and unfortunately, being required to sign one doesn't mean you have no options — but it does change how your claim can be pursued, and it's important to understand the difference.

Arbitration agreements are generally enforceable, including class action waivers. In Epic Systems Corp. v. Lewis (2018), the U.S. Supreme Court held that employers can lawfully require workers, as a condition of employment, to sign arbitration agreements that also waive the right to bring or join a class or collective action. This means that if you signed such an agreement, you may be limited to pursuing your wage claim individually through arbitration rather than in court, and rather than as part of a group with coworkers.

Arbitration is not the same as having no rights. Even in arbitration, you keep your underlying legal right to recover unpaid wages, overtime, and — where applicable — liquidated damages. An arbitrator, rather than a judge or jury, decides the case, but the substantive wage and hour laws that protect you still apply.

Not every arbitration agreement is enforceable as written. Whether a specific agreement is valid can depend on how and when it was presented to you, whether you received anything of value in exchange for signing it, and the exact language it uses. Some agreements are poorly drafted or overly broad in ways that make them vulnerable to challenge.

We can still help. Even if you signed an arbitration agreement, it's worth having an attorney review it — both to confirm whether it's enforceable, and if it is, to represent you throughout the arbitration process itself, which still requires building your case, presenting evidence, and advocating for the full amount you're owed.

There's no single timeline — it depends heavily on the type of case, whether it involves one worker or many, and whether it resolves through negotiation or goes further into litigation.

Individual claims that resolve through early negotiation can sometimes settle within a few months.

Class and collective actions generally take longer — often a year or more — because they involve additional steps individual cases don't, such as court approval of the class or collective, a notice period allowing other affected workers to join, and often a formal settlement approval process even after the parties agree on terms.

Cases that proceed through full litigation without an early resolution can take longer still, particularly if they involve extensive discovery, motion practice, or trial.

Even when a case takes time, workers are protected throughout — for example, joining a collective action generally stops the clock on the statute of limitations for that worker as of the date they join, so pursuing a claim doesn't cost you the ability to recover for the full period you were underpaid.

We understand that waiting for resolution can be frustrating, especially when you're owed money you need. We keep clients updated at each stage and are always honest about realistic timelines rather than making promises we can't keep.

The vast majority of wage and hour cases settle before trial — going to trial is the exception, not the rule. That said, "settling" a case doesn't always mean it happens entirely outside the court system.

Pre-lawsuit resolution: Some claims resolve through a demand letter or negotiation before a lawsuit is even filed.

Settlement after filing suit: Many cases settle after a lawsuit has been filed but before trial, often once both sides have exchanged some evidence and have a clearer picture of the case's strength.

Court approval is often still required for FLSA (federal overtime) claims. In our jurisdiction (the Second Circuit, covering EDNY and SDNY), a federal court must review and approve most settlements of federal wage claims under the Fair Labor Standards Act before the case can be closed — even when both sides have already privately agreed on terms. This rule, established in the case Cheeks v. Freeport Pancake House, exists to protect workers by ensuring a settlement is genuinely fair and not simply a waiver of rights due to unequal bargaining power. Courts reviewing these settlements will often reject provisions like broad confidentiality clauses or overly broad releases.

Class and collective action settlements go through an even more structured court approval process, since a judge must confirm the deal is fair to the entire group before it becomes final — not just to the individual who filed the case.

In short: even a "settled" wage case in federal court often isn't fully private — but that oversight exists to protect you, the worker, not to make the process harder. Your attorney handles that approval process on your behalf.

This is one of the most common concerns we hear, and it's a reasonable one to have — but the law provides real protection, and the practical risks are often smaller than people expect.

Your current job: Federal and state law make it illegal for an employer to fire, demote, cut your hours, or otherwise punish you for asserting your wage rights — whether that's filing a complaint, cooperating with an investigation, or joining a lawsuit. If an employer retaliates anyway, that itself becomes a separate legal violation, often with significant additional damages on top of the underlying wage claim.

Future employers: A civil wage and hour lawsuit is generally a matter of public court record, so it's technically possible for it to surface in an internet search or a thorough background check — though wage claims don't typically appear in standard employment background checks the way criminal records do. In our experience, wage theft claims are common enough, and viewed as reasonable enough, that they rarely raise red flags with future employers the way some other types of disputes might. Many cases also settle relatively quietly rather than going through a public trial.

If you're currently employed and worried about retaliation, that's exactly the kind of concern worth raising directly in a free, confidential consultation — we can talk through the specific protections that apply to your situation before you decide how to proceed.

Waiting to act — or deciding not to act at all — carries real costs, even though it may feel like the safer or easier choice in the moment.

The statute of limitations keeps running. Wage and hour claims are subject to strict filing deadlines (generally six years under New York and New Jersey state law, but only two or three years under the federal FLSA). Each week that passes without action can permanently close the door on recovering wages from that period — the clock doesn't pause just because you're still deciding.

The underpayment likely continues. If your employer is currently underpaying you, that violation typically doesn't stop on its own — every additional pay period can mean more money owed that compounds over time.
Evidence can become harder to obtain. Pay records, schedules, and witnesses are generally easier to secure closer to when the violations occurred. Waiting years can make it harder to reconstruct exactly what happened, particularly if you're no longer employed there.

You may miss the chance to join a collective or class action. If other workers at your company file suit over the same practice, there's often a limited window to join or "opt in." Missing that window can mean losing the opportunity to recover as part of the group.

The employer's practice may continue to affect others. Beyond your own recovery, choosing not to act means the underlying practice may keep affecting coworkers, since employers who get away with wage violations often have little incentive to stop.
To be clear, deciding not to pursue a claim is always your choice, and there can be valid personal reasons for that. But if you're on the fence, the decision doesn't have to be made alone or without information — a free consultation costs nothing and can clarify what you'd actually be giving up by waiting, so the choice is an informed one either way.