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Be Careful About Signing Official Back-Wage Summaries

When U.S. Wage and Hour Division investigators conclude that back-wages are due under the federal Fair Labor Standards Act, at some point they present the employer with a completed Form WH-56, called a "Summary of Unpaid Wages". This document reflects a variety of information, including the names of each individual the investigator believes should receive a payment and the amount of this payment.

The form also contains a signature line beneath a statement saying, "I agree to pay the listed employees the back wages shown due and to mail proof of payment to the Wage and Hour District Office shown above" by a date-certain. With varying degrees of forcefulness, the investigator typically seeks to have a management official sign this statement. Many employers do sign on-the-spot, even though at that stage management might well be unaware of valid legal defenses or might not realize that significant factual or legal questions or other errors or misconceptions must be resolved before it is possible to know whether, to whom, and to what extent any back-pay is actually owed.

Frequently, the employer learns about these issues only when it later consults counsel. We have seen Division officials deflect a subsequent assertion of these defenses, questions, or challenges by saying that, because management signed the WH-56, the employer has committed to an enforceable debt, such that discussions are closed.

For this reason, management might resist signing a WH-56 until it has had the time, opportunity, and advice to evaluate thoroughly the legal and factual reasoning and assumptions underlying the sums presented. If the circumstances are such that management feels compelled or pressured to sign the form even though it does not want to do so, then it should consider adding words to the signature block making clear that (i) it is signing under protest, and (ii) the employer's acquiescence is conditioned upon its reservation of the right to show, for example, that no back-wages are due, or that whatever back-wages are due are less than the amounts shown on the form. The employer should make clear that it is not refusing to pay sums that might ultimately turn out to be owed, but that instead it is simply declining to commit to any figures or payments before having had a sufficient chance to analyze things.

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