What are the penalties and costs for misclassifying employees? The answer will depend on a number of factors, such as
- how many employees are misclassified
- how much extra money they would have been paid if properly classified
- whether or not lawyers or regulatory agencies get involved
DOL Investigation
Generally, if an employee goes to the federal Department of Labor (DOL) and claims that they’ve been misclassified, the DOL will investigate. If the DOL determines that an employee(s) should have been paid overtime but wasn’t, the employee will be owed up to two years’ worth of unpaid wages. That can go up to three if the misclassification was “willful”. The organization may also owe the employee or employees liquidated damages equal to the amount of money owed. So, if an employee should have been paid $2,000 in overtime, the organization may owe them $4,000. The organization would also owe the government taxes on those wages, as well as interest on the taxes.
State Level Penalties
Most states also have their own minimum wage and overtime laws. Often an organization can be held liable under both federal and state law. This means the employee would be owed additional damages for violations of state wage law. And if you are in a state with late payment penalties, the organization could owe additional damages for not having paid all wages by the time they were due. There’s also a very good chance that the organization will be held liable for attorney’s fees—both the organizations and the employees.
Federal Civil Penalties
On top of the costs mentioned above, there are potential federal civil penalties of $2,074 per violation (generally one penalty per misclassified employee), state penalties (which will vary), and in some cases the potential for jail time. Finally, statutory interest may immediately begin to accrue on the amount owed.
Answer provided by Kara Govro, JD, SPHR
