In America today, wage theft is an epidemic. I’m Jonathan Pollard and I am the founding lawyer of Pollard PLLC. Over the past fifteen years, our firm has represented more than 1,000 employees nationwide in all sorts of workers’ rights cases. Our work has been featured in or on The New York Times, The Wall Street Journal, Bloomberg, NPR, PBS News Hour, and more.
When it comes to wage theft, my biggest focus is on protecting folks who work physical labor. I’m not saying that other types of jobs don’t qualify for overtime pay. Many other jobs do. Instead, I’m saying that if your job involves physical labor, there is a very high probability that you are owed overtime pay. So think about jobs like this: Maintenance, repairs, skilled trades, factory workers, garbage truck drivers, warehouse workers, moving and storage, janitors, commercial cleaning. I could list 20 more jobs, but you get the picture. In any job where the work is primarily physical, even if it’s skilled labor, you are probably owed overtime. If you are not being paid overtime, the company is probably scamming you in one of the following ways.
The 1099 Independent Contractor Scam
I have a case right now where my client is a master welder. He works for a company that provides skilled labor to huge distribution centers and warehouses. His real job is doing maintenance and emergency repair on huge conveyor systems. He literally walks miles each day, around this massive distribution center, and maintains the conveyor systems. If one of the conveyors goes down, the factory could lose hundreds of thousands of dollars in a matter of hours. He routinely works 70 hours a week. When I asked him about overtime pay, I was shocked to find out that he’s classified as a 1099 independent contractor. He’s been working for the same company for 5 years. He routinely logs 70 hours a week. He’s never been paid a single dollar of overtime.
He had no clue he was supposed to get overtime. He just assumed that because he signed an agreement calling him an independent contractor that he had given up his right to get overtime pay. But that’s just not true. If you do any sort of physical labor, even skilled labor, never trust the company’s agreement that classifies you as an independent contractor. There’s a really strong chance that you have been misclassified, should have been a W2 employee, and should have been paid overtime.
Two of the biggest factors in determining whether you are truly an employee or independent contractor are as follows: (1) Control. The more control the company has over your work and your day-to-day schedule, the more likely that you are an employee. Example: If the company sets your work schedule, tells you where to be, and when to be there, that cuts strongly in favor of you being an employee. (2) How central you are to the company’s business. If the work you’re doing is central to the company’s business, then you’re more likely to be an employee. If the work you’re doing is less central, more sporadic, or more outside the boundaries of the company’s typical work, that cuts in favor of you being an independent contractor.
Back to my client, the master welder: His company had complete control over his schedule. They set the days and times he had to work. It was mandatory. They told him where he had to be. And they set the rate of pay. Finally: The company’s entire business was staffing skilled labor at distribution centers and warehouses. So without my client and other workers like him, the company would have no business. He was central to the company’s business. What does this mean? He was misclassified. The paper said 1099 independent contractor. But the law says W2 employee.
The consequences here are massive. The Fair Labor Standards Act is the federal law that governs overtime pay. Under the FLSA, you can recover unpaid overtime going back 3 years if you can prove that the company acted in bad faith and knew or should have known it was violating the overtime laws. Otherwise, you can go back 2 years if it was just an innocent mistake. But lots of these companies that are stealing wages from working people are making hundreds of millions and even billions of dollars per year. They have whole armies of lawyers and accountants. Do you really think they are just making an “innocent mistake” when they misclassify workers and fail to pay overtime? Of course not. They know exactly what they’re doing. So that sets up bad faith or a “willful violation” of the overtime laws. And that gets you a 3-year look back window.
So my client gets time and a half for all his overtime hours going back 3 years. Based on his hourly rate of pay, that alone is more than $100,000. But it doesn’t stop there. Under the FLSA, he’s entitled to “liquidated” or double damages. That means the company owes him $200,000. Attorneys’ fees don’t come out of that. That’s my client’s money. All of it will go to him. The company has to pay my attorneys’ fees on top of that.
The “Bring Your Own Tools Scam”
Some of you who have done your research might be thinking: But I had to bring my own tools. So doesn’t this make me an independent contractor? Our firm gets this question all the time. Bringing your own tools doesn’t mean anything.
Think about it like this: Ordinarily, one of the factors in determining whether a worker should be classified as an employee vs. independent contractor is whether or not the worker uses their own tools and equipment. Companies caught onto that. So a lot of companies in construction, repairs, and maintenance started manipulating that one fact in order to set up a defense that workers are independent contractors. Literally, companies just say: Bring your own tools. And then, when asked about overtime pay, they say, “Nope. You’re an independent contractor. You brought your own tools.” These same companies control absolutely every other aspect of the job. They control your schedule, your hours, where you work, when you leave, how you do the job, the rate of pay, and sometimes more. The only reason they required you to bring your own tools was so they could misclassify you as an independent contractor and avoid paying payroll taxes and overtime. I see this scam every single day.
The Day Rate Scam
This is another classic scam: Instead of paying hourly, the company pays workers a “day rate”. I have a new case like this involving garbage truck drivers. The company puts all the garbage truck drivers on a day rate. First, they start at 8 hour days. But then the company starts requiring more and more time. Eventually, the drivers are working 10- and 11-hour days, all for the same day rate. They’re making less money per hour.
Many workers who are paid on a day rate are still entitled to overtime pay. Especially if they are working in blue collar jobs, doing physical labor, or even doing skilled labor. I’ll give you another example from my case files: A few years back, I had a case where laborers on a construction site were being paid $150 a day. But they were working 11 hours a day, 5 days a week. All of these guys were putting in 55 hour weeks. None of them were being paid overtime. That was illegal. I got all of them paid the overtime they were owed and more.
The Salaried / Manager Scam
This one is a classic. You know Family Dollar? Of course, we all do. A couple years ago, they got tagged for $35 million in a fake manager overtime case. I know that’s retail and not classic labor, but it goes the same exact direction. These folks were working in the store, stocking shelves, running the cash register, doing inventory. But Family Dollar called them all “managers” to avoid paying overtime.
I see this in labor and skilled labor all the time. They call you a “manager” or “crew leader” or “foreman”. But 90% of your job is doing the actual work. And only 10% of your job is supervising or “managerial” duties. Why does the company do this? To call you a salaried manager and avoid paying you overtime.
Off the Clock Work and Unpaid Time
This is another common way that companies steal money from working people: Off the clock and unpaid time.
Think about your typical day. If you get to the workplace or the job site and there is preliminary work you have to do before you’re allowed to start your official work day, that is probably an overtime violation. Here’s a good example: You drive a garbage truck. Your shift officially starts at 5am. But you are required to arrive by 4:30am and conduct a standard, checklist inspection of the truck before leaving the yard. And you are not paid for that time. You do this 5 days a week. At the end of the week, that’s 2.5 unpaid hours of time.
Another example: Say part of your job involves use of a company vehicle. At the end of the day, after you clock out, they make you unload, clean the vehicle, and refuel. You spend 30 to 45 minutes every night doing this work, but never get paid for it. That’s another wage and hour violation.
Think about training. I know that might not sound like a big deal. But lots of companies make new hires go through several days of unpaid training. A couple years ago, I sued a private security company for doing exactly that: mandatory, unpaid training for all new hires. The point: If you are regularly doing extra work that’s off the clock and unpaid, then you should get legal advice regarding your rights.
Here’s the bottom line on all of these different scams: Whether it’s the day rate scam, the 1099 scam, or something else: If you or someone you love is in a situation like this, you should get legal advice. This is one area of law where you should never pay for legal advice. If you are doing physical labor or physical work, there are plenty of lawyers out there who will evaluate your case without charging you. That includes me. I did a ton of manual labor when I was younger. I loaded lots of trucks. Worked on an assembly line in a factory. I even worked as a day laborer in San Diego when I was 19 years old. I’ve been there. I get it. And I would never charge a working person money to evaluate whether or not a company is stealing wages from them.
If you contact a lawyer, just explain that you have a question about overtime pay. Tell them whether you are 1099 or W2. How many hours you are working a week. How you’re paid (hourly, salary, day rate, etc). And whether or not you have complained about it at work or experienced retaliation.
Retaliation is Illegal but Companies Do It Anyway
You have the absolute right to ask your employer about overtime pay. You have the right to ask questions about wages and hours, generally. For example: If you’re required to do certain tasks before or after work that you don’t get paid for. Or you’re required to attend various meetings and trainings that you don’t get paid for. You have the right to inquire about being compensated for that time. Under the FLSA, it is illegal for an employer to retaliate against a worker for asking about overtime pay or wages and hours. But don’t expect companies to follow the law.
In the real world, as soon as you ask about overtime pay or uncompensated time, you become a target. You could have 5 years with a company. Spotless track record. Received company awards and recognition. But as soon as you ask about overtime pay, you will suddenly become a target.
I’ll give you a great example: One of my clients was a pest control technician who worked 6 days a week. He had a company truck. Naturally, he would stop during the day to get something to eat. He had nearly 5 years with the company. Outstanding performance. Then he went and asked HR about overtime pay and for copies of any documents he signed and any company handbook. Within days, the company fired him. The reason? Unauthorized use of a company vehicle. After a 12 hour day, he stopped to get dinner on his way home.
So, if you speak up about your right to be paid correctly, just know that you will probably get fired, demoted, or reassigned to a terrible schedule, inconvenient location, or worse job duties. But there is a silver lining here: Under the FLSA, retaliation is illegal. And FLSA retaliation claims have real teeth.
At a minimum, you can get lost wages and compensatory damages for emotional distress, humiliation, depression, and disruption to your life. And in some parts of the country, you can even get punitive damages. Let me give you an example of just how ugly an FLSA retaliation case can be for a company: There is a 2025 case called Mosby v. Reaves Law Firm out of the fairly conservative United States District Court for the Western District of Tennessee. In that case, the jury awarded $2.5 million on an FLSA retaliation claim. And the court upheld the jury’s verdict.
You can’t expect that sort of outcome in every case. And, as I’ve noted, courts in some parts of the country do not allow punitive damages in FLSA retaliation cases. Here’s a quick cheat sheet for you. Federal courts in Illinois, Indiana, and Wisconsin absolutely allow punitive damages in these cases. Courts in Florida, Georgia, and Alabama absolutely do not. In the rest of the country, it’s an unresolved legal issue. Meaning some courts will and some courts won’t. Other jurisdictions where at least some plaintiffs have won punitive damages for FLSA retaliation include California, Washington, Arizona, New York, Connecticut, Vermont, New Jersey, Pennsylvania, Delaware, and Massachusetts.
Even without punitive damages, you can still get compensatory damages. And that could be $250,000 or more if you have strong evidence of emotional distress and disruption to your life.
If You Ask About Overtime Pay, Always Put It in Writing
If a company is cheating you out of overtime pay for physical work, then they already have shown their true colors. You should expect them to lie, cheat, steal, destroy evidence, and everything else in that direction.
What’s this mean for you? Well, it means that if you are going to ask about overtime pay, then you need to put it in writing. I know: A lot of folks are hesitant to put something like this in writing because it feels so formal and it might make the company feel threatened. But here’s the harsh reality: If you only complain about overtime pay in a conversation and it’s not in writing, the company will probably fire you ASAP and then deny that you ever complained. So you put it in writing. Send a text or an email. And make sure that you have a copy of it. Because if and when the company retaliates against you after that, you’ll be able to prove that the retaliation followed shortly after you complained about overtime pay. That’s about as close as you can get to a smoking gun.
Arbitration Isn’t Always Hopeless
The big punitive damages award mentioned above obviously comes from a jury trial. But corporate America does everything they can to avoid trial by jury. The bigger the company you work for, the more likely it is that you signed an arbitration agreement. This means that instead of going to court and having a trial by jury, your case gets decided by an arbitrator. The arbitrator is either a retired judge or a corporate lawyer. That is not ideal. And that’s nowhere near as good as a jury trial. But it’s not hopeless.
I’ve had multiple arbitrators rule in my favor in employment cases. So it can be done. The most important thing there is picking the right arbitrator. But that’s not something you have to worry about. Your lawyer will handle that. Bottom line: If you are doing physical work and not getting paid overtime, then speak up. You have rights. Retaliation is illegal. And there are plenty of good lawyers out there who will help you with your case without charging you a single dollar.
Relevant Video Content: Unpaid Overtime & Physical Labor
Jonathan Pollard is the founder of Pollard PLLC, a law firm that litigates high-stakes and high-impact employment law cases. The firm has offices in Fort Lauderdale, Florida and St. Louis, Missouri but litigates cases nationwide. For more information, email info@pollardllc.com or call 954-332-2380.