Yes, you can fill out DOL Form 385 correctly on your first try, but only if you understand which version of “Form 385” applies to your situation, what each line item means, and how the U.S. Department of Labor (DOL) and state labor agencies use the information you submit. The label “Form 385” is used in several DOL contexts, including the federal Longshore and Harbor Workers’ Compensation Act (LHWCA) program, the Office of Workers’ Compensation Programs (OWCP), and certain state wage notice forms such as the New York LS-385 wage payment claim form.
Filing the wrong information, missing a deadline, or skipping a required signature can trigger penalties under the Fair Labor Standards Act (FLSA), the LHWCA, or state wage theft statutes. According to the DOL Wage and Hour Division enforcement data, the agency recovered more than $274 million in back wages for nearly 152,000 workers in fiscal year 2024, and a large share of those recoveries started with a wage claim form like LS-385. The cost of a careless filing is real, both for employers who face liquidated damages and for workers who lose their right to recover unpaid wages.
This guide walks you through every line, every box, and every signature block, with named examples and scenarios pulled from real DOL practice.
- 📋 How to identify the correct “Form 385” for your situation, federal or state
- 💡 Line-by-line instructions with plain-English explanations and examples
- ⚖️ The governing statutes, deadlines, and penalties tied to each section
- 🧾 Three named-person scenarios showing right and wrong ways to file
- 🚫 The most common mistakes that cause rejections, denials, or fines
What “DOL Form 385” Actually Means
The phrase DOL Form 385 is not a single document. It is a label used by different DOL units and by some state labor departments. The most widely used version is the New York State Department of Labor LS-385 Claim for Unpaid Wages, which workers use to recover stolen pay. The federal OWCP LS-385 is a Longshore Act form used in vocational rehabilitation and wage-earning capacity reporting. A third use appears inside the Employee Benefits Security Administration (EBSA) reporting family, where Schedule and attachment numbers can shift each plan year.
Knowing which agency owns your form matters because each version has its own statute, its own deadline, and its own penalty structure. The plain-English version is simple. If you are a worker who was not paid, you almost certainly need the state LS-385 or a federal WH-3 wage claim. If you are an employer or insurance carrier in maritime work, you need the federal LHWCA LS-385. If you are a benefits plan administrator, you need to check the current Form 5500 instructions before assuming any form number.
The consequence of using the wrong form is steep. Under 29 U.S.C. § 216(b), a worker who files an invalid wage claim may lose the right to liquidated damages. Under the LHWCA at 33 U.S.C. § 914, an employer who misreports wage-earning capacity faces civil penalties of up to $343 per day in 2026, indexed annually under the Federal Civil Penalties Inflation Adjustment Act.
A common misconception is that any “Form 385” can be downloaded once and reused for years. In truth, the DOL revises its forms on a rolling basis, and using a stale revision date can void your filing. Always pull the current PDF directly from the agency website on the day you file.
Federal vs. State Form 385
The federal LS-385 is governed by the LHWCA implementing regulations at 20 CFR Part 702, which set strict timelines for vocational and wage-earning capacity reporting. The state LS-385, most prominently in New York, is governed by New York Labor Law § 196-a, which protects workers who file complaints from retaliation. Each version uses different boxes, different signatures, and different submission addresses.
The consequence of mixing them up is a returned packet and a missed deadline. A worker who mails a state LS-385 to the federal OWCP district office in Boston will get nothing back for weeks, and by then the six-year statute of limitations under New York Labor Law § 198(3) may already be ticking down.
A real-world example helps. Maria, a line cook in Queens, was shorted $4,200 in overtime over eight months. She used the state LS-385, mailed it to the NY DOL Division of Labor Standards, and recovered her wages plus 100 percent liquidated damages. Had she used the federal form by mistake, she would have lost months of interest accrual.
A common misconception is that the federal DOL handles all wage theft. In reality, the federal Wage and Hour Division focuses on FLSA minimum wage and overtime, while state agencies handle straight-time wage theft under state law.
Why the Form Number Matters
Form numbers are not cosmetic. Each number ties to a specific Paperwork Reduction Act (PRA) clearance and a specific OMB control number printed on the form. The plain-English version is that the OMB number proves the form is legally authorized to collect your data.
The consequence of filing a form without a valid OMB control number is that the agency may refuse to process it. Under 5 CFR § 1320.6, no person can be penalized for failing to respond to a collection that lacks a current OMB number, but the flip side is that the agency is not required to act on it either.
For example, James, a longshoreman in Baltimore, downloaded an LS-385 from a third-party legal blog. The PDF carried an expired OMB number from 2019. His insurance carrier rejected the filing, and he had to refile, losing 21 days of vocational rehabilitation benefits.
A common misconception is that any DOL form found through a search engine is current. The safest path is to start at dol.gov/general/forms and follow links from there.
Line-by-Line: Federal LS-385 (LHWCA)
The federal LS-385 Pre-Hearing Statement is used in Longshore Act claims to summarize the issues before a formal hearing with an Administrative Law Judge (ALJ). It is governed by 20 CFR § 702.317, and it must be filed before the ALJ will set a hearing date. Every box ties to a statutory element of the claim.
The plain-English version is that the LS-385 forces both sides to commit, in writing, to the issues, the witnesses, and the exhibits. The consequence of leaving a box blank is that the ALJ may bar that issue or that witness at the hearing. The example to remember is that Robert, a marine welder in Norfolk, forgot to list his treating physician on the witness page and was barred from calling that doctor at hearing, costing him a permanent partial disability award.
A common misconception is that the LS-385 is optional. Under 29 CFR § 18.80, pre-hearing statements are mandatory in OALJ proceedings unless the judge waives them in writing.
Section 1: Caption and Case Number
The caption block at the top asks for the claimant’s name, the employer’s name, the carrier’s name, and the OWCP case number. The OWCP case number is assigned when the LS-203 Notice of Injury is filed and looks like a seven-digit number with a district prefix.
The consequence of entering the wrong case number is that the form lands in the wrong file at the OWCP district office, which can delay the hearing by 30 to 60 days. For example, Linda, a clerk-typist for a stevedoring company in Long Beach, transposed two digits in the case number, and her LS-385 sat unmatched in the Long Beach district office for seven weeks.
A common misconception is that the case number is optional if you include the claimant’s Social Security number. Since 2019, OWCP has stopped using SSNs as primary identifiers under DOL privacy guidance, so the case number is the only reliable lookup key.
Section 2: Statement of Issues
This section asks each party to list every disputed issue, such as average weekly wage, extent of disability, or causal relationship. The governing rule is 33 U.S.C. § 919, which requires that all issues be raised before the ALJ.
The consequence of omitting an issue is waiver. The ALJ can refuse to hear it, and the Benefits Review Board will not consider it on appeal. Carlos, a crane operator in Houston, failed to list “Section 8(f) relief” on his LS-385, and his employer lost the chance to shift liability to the Special Fund, costing the carrier more than $180,000 in future benefits.
A common misconception is that you can amend the issues at the hearing. Amendments are allowed only with leave of the judge under 29 CFR § 18.33, and good cause is required.
Section 3: Witnesses and Exhibits
You must list each witness’s name, address, and the subject of testimony. You must also list each exhibit by number and short description. The rule is 29 CFR § 18.80(c), which requires pre-hearing exchange.
The consequence of failing to list a witness or exhibit is exclusion at hearing. Aisha, an injured ship rigger in Seattle, did not list her vocational expert and was barred from offering the only evidence of her loss of wage-earning capacity, which under 33 U.S.C. § 908(c)(21) is a core element of permanent partial disability.
A common misconception is that surprise witnesses are allowed for impeachment. They are, but only for true rebuttal, not to fill gaps in the case-in-chief.
Line-by-Line: New York LS-385 (Wage Claim)
The New York LS-385 is the most common state form people mean when they say “DOL Form 385.” It is a sworn claim for unpaid wages, including minimum wage, overtime, spread-of-hours pay, call-in pay, and unpaid commissions. It is governed by New York Labor Law Article 6 and enforced by the Division of Labor Standards.
The plain-English version is that this form starts a state investigation. Once filed, the DOL can subpoena payroll records, interview coworkers, and assess civil penalties up to 200 percent of the unpaid wages. The consequence of an inaccurate filing can include rejection, but more often it just slows the case. The example is Mei, a nail salon worker in Flushing, who filed an LS-385 with no employer address; her case was paused for 11 weeks while DOL tried to find the business.
A common misconception is that you must hire a lawyer to file. You do not. The form is designed for self-represented workers, although a free legal services provider can help.
Page 1: Claimant Information
You enter your name, address, phone, email, the dates you worked, and your job title. You also list your rate of pay and how you were paid, such as hourly, salary, piece rate, or commission. The rule that matters here is 12 NYCRR § 142-2.6, which requires employers to keep accurate wage records.
The consequence of leaving the pay rate blank is that DOL must reconstruct your wages from employer records, which may favor the employer. David, a delivery driver in the Bronx, listed only “tips” without an hourly rate, and DOL initially calculated his claim using the tipped minimum wage rather than the full minimum, undercounting his back wages by $2,800 until he amended the form.
A common misconception is that you should round numbers. You should not. List exact figures from your pay stubs, calendars, or text messages.
Page 2: Employer Information
You list the legal name of the business, any “doing business as” name, the address, and the names of the owners or managers. You also state whether the business is still operating. The governing law is New York Labor Law § 195, which requires wage notices and pay statements that supply most of this information.
The consequence of an incomplete employer entry is delay or, if the business has closed, reduced recovery. Under Labor Law § 630, the top 10 owners of an LLC can be personally liable for unpaid wages, but only if you name them. Ahmed, a construction laborer in Brooklyn, did not list the LLC members, and when the company dissolved he lost the chance to pursue them personally.
A common misconception is that DOL will find the owners on its own. The agency searches public records, but if the LLC was formed out of state or filed with a registered agent, DOL may not find the members in time.
Page 3: Wage Claim Details
This page asks for the dates and amounts of unpaid wages, broken down by category, including minimum wage, overtime, spread of hours, uniform maintenance, and unlawful deductions. The rule is 12 NYCRR Part 142, which sets the substantive standards.
The consequence of misclassifying a claim is undercount. Spread-of-hours pay, for instance, is owed under 12 NYCRR § 142-2.4 any day a worker’s shift spans more than 10 hours, and many workers leave it off. Priya, a restaurant server in Manhattan, missed $1,900 in spread-of-hours pay over two years until DOL flagged it during the investigation.
A common misconception is that salaried workers cannot claim overtime. Most salaried workers in New York are still entitled to overtime unless they meet a specific executive, administrative, or professional exemption under state and federal law.
Page 4: Signature and Verification
You must sign under penalty of perjury and include the date. The verification is required by Labor Law § 196-a and is what gives the form legal weight. An unsigned form is treated as a tip, not a claim.
The consequence of skipping the signature is that the statute of limitations keeps running. Tomas, a warehouse worker in Yonkers, mailed an unsigned LS-385 two weeks before his six-year deadline; DOL returned it for signature, and by the time he resubmitted, several months of his claim were time-barred.
A common misconception is that an electronic signature is never valid. New York accepts electronic signatures under the Electronic Signatures and Records Act, although the LS-385 is most often filed on paper.
Three Real-World Filing Scenarios
The fastest way to understand the form is to see it in action. Each scenario below is drawn from common fact patterns the NY DOL and federal OWCP handle every week. The named individuals are illustrative.
Scenario A: Restaurant Worker Underpaid
| Filing Step | Result for the Worker |
|---|---|
| Sofia lists exact tip-credit hours and dates on Page 3 | DOL calculates full minimum wage owed, $6,400 recovered |
| Sofia attaches text messages showing schedule changes | Spread-of-hours claim added, +$1,100 |
| Sofia names the LLC’s two managing members on Page 2 | Personal liability preserved when restaurant closes |
Scenario B: Longshoreman Pre-Hearing
| Filing Step | Result for the Claimant |
|---|---|
| Marcus lists average weekly wage as a disputed issue | ALJ allows wage evidence at hearing |
| Marcus lists treating orthopedist as a witness | Doctor testifies, supports permanent partial disability |
| Marcus identifies five exhibits, including MRI reports | All five admitted without objection |
Scenario C: Salaried Manager Misclassified
| Filing Step | Result for the Worker |
|---|---|
| Janet checks “salary” and lists $52,000 annual pay | DOL screens for executive exemption |
| Janet describes daily duties as 90 percent line cook work | Exemption fails, overtime claim survives |
| Janet attaches two years of schedules | Back wages calculated at $18,300 plus liquidated damages |
Mistakes to Avoid
Every rejected or weakened LS-385 tends to fail for one of the same reasons. The list below covers the most common, each with the negative outcome that follows.
- Using an outdated form revision, which can lead to outright rejection under the PRA clearance rules.
- Mailing a state form to a federal office, which causes weeks of delay and may push you past the LHWCA one-year filing deadline.
- Leaving the employer address blank, which stalls the investigation and can let a closing business dissolve before service.
- Rounding wage figures, which can trigger a credibility hit during the DOL investigation and reduce your recovery.
- Forgetting to list spread-of-hours or call-in pay, which leaves money on the table under 12 NYCRR § 142-2.4.
- Skipping the signature and verification, which means the form is not a sworn claim and the statute of limitations keeps running under Labor Law § 198.
- Failing to name LLC members or corporate officers, which forfeits personal liability under Labor Law § 630.
- Listing only “see attached” instead of summarizing issues, which can be treated as a non-filing under 29 CFR § 18.80.
- Forgetting to update your address, which means the DOL determination letter never reaches you and the appeal window closes.
- Filing a duplicate claim in court and with DOL without disclosing it, which can lead to dismissal under the election of remedies doctrine.
- Submitting unauthenticated screenshots without explanation, which the ALJ can exclude under 29 CFR § 18.901.
Do’s and Don’ts
The do’s keep your filing strong. The don’ts protect you from avoidable losses.
- Do download the current PDF the day you file from the official DOL forms page, because revisions happen quietly.
- Do attach pay stubs, schedules, and texts as exhibits, because contemporaneous records carry the most weight in a WHD investigation.
- Do calculate overtime at one and one-half times the regular rate, because 29 CFR Part 778 requires it for non-exempt workers.
- Do list every employer entity, because joint-employer liability under 29 CFR § 791.2 often expands recovery.
- Do keep a stamped copy or certified-mail receipt, because proof of filing is the only defense against a “we never received it” response.
- Don’t sign before you read every page, because the verification creates criminal exposure for false statements.
- Don’t talk to the employer’s lawyer without your own counsel, because anything you say can be used in the DOL hearing.
- Don’t file by fax unless the form expressly allows it, because most district offices no longer accept faxes.
- Don’t ignore retaliation, because Labor Law § 215 gives you a separate cause of action with its own damages.
- Don’t assume the form is final once mailed, because you can amend with leave under 29 CFR § 18.33.
Pros and Cons of Filing Form 385
Filing has real benefits and real trade-offs.
- Pro: Free to file, with no filing fee in either the federal or state version, which keeps the door open for low-wage workers under DOL access policy.
- Pro: DOL handles service of process on the employer, sparing you the cost of a private attorney.
- Pro: Liquidated damages of up to 100 percent are available under 29 U.S.C. § 216(b) and 100 percent under Labor Law § 198.
- Pro: Anti-retaliation protection attaches at the moment of filing under 29 U.S.C. § 215(a)(3).
- Pro: The investigation can sweep in coworkers, multiplying recovery under DOL multi-employee enforcement.
- Con: The investigation can take 6 to 18 months, which is slower than a private FLSA lawsuit.
- Con: You may be limited to back wages and liquidated damages, with no separate emotional-distress recovery.
- Con: Settlement offers may be lower than what a jury would award, because DOL focuses on back wage recovery.
- Con: Filing can trigger an audit that finds you owe taxes on previously unreported tips under IRS rules.
- Con: A flawed filing can waive issues you did not raise, especially in LHWCA hearings.
Key Entities You Should Know
Several agencies and roles touch every Form 385 filing. The Wage and Hour Division (WHD) enforces the FLSA and investigates federal wage claims. The Office of Workers’ Compensation Programs (OWCP) administers the LHWCA, the FECA, and the Black Lung program. The Office of Administrative Law Judges (OALJ) holds the hearings where the federal LS-385 is filed.
At the state level, the New York State Department of Labor runs the wage theft program, and the Attorney General’s Labor Bureau prosecutes criminal wage theft under the Wage Theft Accountability Act. On the employer side, an insurance carrier often signs the federal LS-385 alongside the employer, and a third-party administrator may handle day-to-day filings.
The roles connect like a chain. The worker files. The agency investigates. The employer or carrier responds. The ALJ or compliance officer decides. Each link has its own form, its own deadline, and its own consequence for missing a step.
Recap of Key Rulings
Several decisions shape how Form 385 is read and enforced. In Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134 (2018), the Supreme Court rejected the old rule that FLSA exemptions must be narrowly construed, which raised the bar for workers proving misclassification on Page 3 of the state LS-385. In Director, OWCP v. Newport News Shipbuilding, 514 U.S. 122 (1995), the Court limited who can appeal under the LHWCA, which shapes how parties caption the federal LS-385.
In Integrity Staffing Solutions v. Busk, 574 U.S. 27 (2014), the Court held that post-shift security screenings are not compensable under the Portal-to-Portal Act, which affects how workers calculate hours on Page 3. New York courts in Vega v. CM & Associates Construction Management, 175 A.D.3d 1144 (1st Dep’t 2019) allowed a private right of action for late wage payments under Labor Law § 191, which expanded the universe of LS-385 claims.
The plain-English consequence is that the case law decides what counts as a winning claim. Filing the form is only the first step.
FAQs
Is DOL Form 385 the same in every state?
No. The form name overlaps across federal and state systems, so you must confirm the issuing agency, the OMB control number, and the current revision date before filing anything labeled “Form 385.”
Do I need a lawyer to file Form 385?
No. The form is built for self-represented workers and employers, although a free legal aid provider can strengthen a complex claim involving misclassification or retaliation.
Is there a filing fee for Form 385?
No. Both the federal LS-385 and the New York LS-385 are filed free of charge under DOL access policy, which keeps the system open to low-wage workers.
Can I file Form 385 online?
Yes. New York accepts the LS-385 by mail or through its online wage theft portal, and the federal OALJ accepts pre-hearing statements through its eFile system.
Does filing Form 385 protect me from retaliation?
Yes. Filing triggers anti-retaliation protection under 29 U.S.C. § 215(a)(3) and New York Labor Law § 215, with separate damages for any retaliatory act.
Can I amend Form 385 after filing?
Yes. You can amend by writing to the assigned investigator, and in OALJ cases by motion under 29 CFR § 18.33, provided you show good cause for the change.
Is there a deadline to file Form 385?
Yes. New York wage claims have a six-year limit under Labor Law § 198(3), and federal LHWCA claims must be filed within one year under 33 U.S.C. § 913.
Do I have to sign Form 385 in front of a notary?
No. Most versions only require a signature under penalty of perjury, not notarization, although some district offices request notarization for the federal LS-385 in disputed cases.
Can my employer see my Form 385?
Yes. The employer is served with the claim so it can respond, but personal contact information may be redacted under DOL privacy practices and New York FOIL exemptions.
Will I get liquidated damages if I win?
Yes. Successful FLSA claims recover up to 100 percent in liquidated damages under 29 U.S.C. § 216(b), and New York claims recover 100 percent under Labor Law § 198.
Can I file Form 385 if I am undocumented?
Yes. Immigration status does not bar wage recovery under the FLSA or under New York Labor Law, and DOL does not share status with immigration authorities in routine wage cases.
Does Form 385 cover unpaid commissions?
Yes. Commissions are wages under New York Labor Law § 190, and unpaid commissions for sales representatives may also trigger double damages under Labor Law § 191-c.
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