Retaliation for Reporting Non-Payment of Wages
Non-Payment or Underpayment of Wages Is A Problem For Low Wage Workers
Employees are often reluctant to report or confront their employer about problems in the workplace. This can be especially true of blue collar or low-wage employees who often live paycheck to paycheck. Unfortunately, this reluctance can lead to abuses by unscrupulous managers or employers. One of the most common complaints of such employees is that they were shorted on their hours, and therefore did not get paid for all the hours they worked. Another way that employers sometimes employ this practice is by not providing employees with a pay stub, which leaves them with no way to even check if they have been paid for all the hours worked, or if the hourly wage they are actually being paid is the same wage they were promised.
Arizona Law Protects Workers Who Report Non-Payment or Underpayment of Wages
Fortunately, the law offers workers some protection against such abuses. Specifically, Arizona’s Employment Protection Act states, in relevant part:
The public policy of this state is that [a]n employee has a claim against an employer for termination of employment [if] [t]he employer has terminated the employment relationship of an employee in retaliation for [t]he disclosure by the employee that the employer has violated, is violating or will violate the statutes of this state. (Ellipses omitted).
A.R.S. § 23-1501(A)(3)(c)(ii).
Despite the confusing wording, the intent of the statute is clear—the Act prohibits retaliation for pointing out illegal activity by an employer. Importantly, retaliation against employees is prohibited in several other contexts as well. For example, the Act also prohibits retaliation if an employee refuses to break the law or if the employee makes a workers’ compensation claim [Id., §§ (A)(3)(c)(i) & (iii)].
Reporting Illegal Activity Is A Protected Activity
By placing the reporting of illegal activity within the bounds of the state’s public policy, the legislature has provided the background and context necessary for the Courts to find that such reporting is a protected activity. See Hernandez v. Spacelabs Medical, Inc., 343 F.3d 1107, 1113 (9th Cir.2003)(finding that an employee can succeed in a claim for retaliation by showing that (1) he was engaged in a protected activity; (2) that he suffered an adverse employment action; and (3) that there is a causal link between the two). In other words, when an employee does something that is covered by the law, such as reporting underpayment of wages, it is illegal for the employer to fire them because of it.
In the case of asking about or reporting unpaid or underpaid wages, or asking about the failure to provide a paystub, this is protected activity because the employer’s failure to do so violates Arizona law. Among other things, the law requires that “[e]ach employer . . . on each of the regular paydays, pay to the employees all wages due to the employees up to such date.” A.R.S. § 23-351(C).
An Employee May Seek Compensation for Wrongful Termination If He Is Fired for Reporting Non-Payment of Wages
For an employee who is wondering whether to ask their employer about discrepancies in their paycheck over the hours worked, the hourly wage earned, or the lack of providing a pay stub so that the employee can check these, they are protected by the law. That does not mean that an unscrupulous employer won’t fire him over it, but it does mean that if the employee will have the right to seek compensation for wrongful termination if that happens.
Rex A. Christensen practices employment discrimination law in Gilbert, Arizona. He can be reached at (480) 378-2400.
This article does not constitute, and should not be considered, legal advice, and you should consult with an attorney regarding your own specific legal matters. The existence of this article or your reading of it does not create an attorney-client relationship. Neither the Christensen Law Firm nor any of its attorneys may represent you without first establishing that doing so will not create a conflict of interest.
Rex A. Christensen is licensed to practice law in Arizona only.