Detailed Answer
When you lack time-and-pay records, New York law still lets you recover unpaid wages and related damages. Under New York Labor Law § 195, employers must provide accurate pay statements. If they fail, you can file a claim under New York Labor Law § 198 seeking unpaid wages plus statutory penalties. Courts allow employees to reconstruct lost wages using secondary evidence when primary records are missing. You must prove hours worked and pay rate to a reasonable degree of certainty. You can use methods like:
- Bank statements and deposit records showing wage payments
- Tax returns (W-2, 1099) and IRS wage transcripts
- Employer affidavits or letters confirming your typical hours and rates
- Emails, calendars, text messages or shift schedules
- Co-worker or client testimony describing your work
- Payroll requests or subpoenas to former employers
Once you gather evidence, calculate your lost wages by determining your average hourly or weekly earnings during a representative period. Multiply that rate by the hours or weeks you missed. Subtract any compensation you received (such as disability payments). Include overtime premiums, bonuses, commissions and shift differentials if applicable.
Legal Standards Under New York Law
- NY Labor Law § 195(1) requires written wage statements and (3) sets penalties for missing statements.
- NY Labor Law § 198 outlines employee enforcement actions to recover unpaid wages and statutory penalties.
- Under New York common law, you must prove lost wages “to a reasonable degree of certainty.” Courts may permit reasonable estimates when precise proof is unavailable (e.g., Quan v. H & M Mach. Indus., 198 A.D.2d 565 (2d Dep’t 1993)).
Calculation Methods
- Average Hourly Rate: Total documented earnings in a pay period ÷ total hours worked.
- Average Weekly Wage: Total earnings in a representative period ÷ number of weeks in that period.
- Lost Wage Formula: Average rate × hours/weeks missed − any income received.
- Overtime & Premiums: Overtime hours × overtime rate; add bonuses or commission rates.
Helpful Hints
- Act early: request missing records in writing via certified mail to preserve evidence.
- Keep personal logs of work hours, breaks, and tasks.
- Collect all tax documents and bank statements annually.
- Ask co-workers or supervisors for written statements if records vanish.
- Consult the New York State Department of Labor’s Wage and Hour Division for guidance.
- Consider an attorney or legal aid if your claim is complex or contested.
Disclaimer: This article provides general information about New York law. It is not legal advice. Consult a qualified attorney for advice on your situation.