Unpaid Wages and Overtime: How to Get What You're Owed

Wage theft is common and often unintentional, but either way you're entitled to be paid for every hour you work. Here's how the rules work and what you can do.

The federal baseline

The Fair Labor Standards Act (FLSA) sets a federal minimum wage and requires most employees to be paid one and a half times their regular rate for hours over 40 in a workweek. Many states and cities set higher minimum wages, and some (like California) also require daily overtime. You get whichever rule is more protective.

"Exempt" vs. "non-exempt"

Some salaried employees are exempt from overtime, but generally only if they meet both a salary threshold and a duties test (executive, administrative, professional and a few others). A few jobs, such as outside sales, teachers, and licensed doctors and lawyers, have no salary test. A job title or being paid a salary isn't enough. Plenty of "assistant managers" and "coordinators" are misclassified and owed overtime.

Common violations

Off-the-clock work: pre-shift setup, post-shift cleanup, working through lunch, answering messages from home.
Misclassification as an independent contractor or as exempt.
Averaging hours across two weeks to avoid overtime. Overtime is counted per workweek.
Tip violations: managers taking tips, or illegal tip credits.
Unpaid final paychecks or illegal deductions.
Not counting bonuses in the overtime rate.

How to recover unpaid wages

Keep your own records: hours, schedules, pay stubs, texts about work.
Ask in writing. Sometimes it's a payroll error.
File a wage claim with your state labor department or the U.S. Department of Labor's Wage and Hour Division. It's free.
File a lawsuit, individually or as part of a collective or class action. Under the FLSA you can often recover the back pay plus an equal amount in liquidated damages, and the employer pays your attorney's fees if you win.

Deadlines

FLSA claims generally must be brought within two years, or three years for willful violations. State laws can allow more time. Every week you wait can cost you a week of recoverable pay.

Retaliation is illegal

Your employer can't fire, demote or punish you for complaining about pay or filing a claim. If they do, that's a separate violation. See wrongful termination.

Because fee-shifting rules let winning workers recover legal fees, many wage lawyers take cases on contingency. Find an employment lawyer near you.

This guide is general information, not legal advice. Wage laws vary by state and city.