Unpaid overtime or wages? You're owed double (FLSA back pay + liquidated damages), and it's free to claim
Federal law requires time-and-a-half after 40 hours for most hourly and many salaried workers, and pays back wages plus an equal amount in liquidated damages when employers get it wrong. Off-the-clock work, misclassified "managers" and "contractors," tip theft, unpaid breaks: how to check if you're owed, the Department of Labor's free wage claim, and why lawyers take these cases at no cost to you.
- The Fair Labor Standards Act requires the federal minimum wage ($7.25; most states higher) and overtime at 1.5x your regular rate for hours over 40 in a workweek, for non-exempt employees. Some states add daily overtime (California after 8 hours/day).
- Common violations: off-the-clock work (setup, closing, answering messages, mandatory meetings), automatic meal deductions when you worked through lunch, misclassifying you as exempt with a "manager" title or a salary under the threshold, calling you an independent contractor when you're really an employee, tip pooling with managers, rounding time, unpaid travel between job sites.
- What you get: back wages for 2 years (3 if willful) + an equal amount as liquidated damages (so double), plus attorney's fees. Retaliation for claiming is illegal and adds damages.
- Free claim with the Department of Labor's Wage and Hour Division (1-866-487-9243 or online), or your state labor department (often better rules and faster). Or a wage-and-hour lawyer on contingency.
- Keep your own hours log, schedules, texts, and pay stubs. Your records are accepted when the employer's are missing or wrong.
Are you exempt from overtime?
To be exempt (no overtime) you generally must be paid a salary of at least $684/week ($35,568/year) under the current federal rule, and perform executive, administrative, or professional duties (managing 2+ employees with hiring input, exercising independent judgment on significant matters, or advanced-degree work). A title like "assistant manager" or "coordinator" doesn't make you exempt; the actual duties do. Several states set higher salary thresholds (California, New York, Washington, Colorado). Outside sales and some computer roles have their own tests.
Not exempt (owed overtime) in almost all cases: hourly workers, retail and restaurant staff, warehouse and delivery, most nurses' aides and technicians, call center staff, paralegals, many "salaried" office workers who don't manage anyone.
Independent contractor? If the company controls how, when, and where you work, provides the tools, and the work is its core business, you're likely an employee under the FLSA's economic reality test, and owed minimum wage and overtime regardless of the 1099.
Add it up
- Hours actually worked each week (include time before clocking in, after clocking out, working lunches, required training, on-call time where you couldn't leave).
- Regular rate = total pay for the week (including non-discretionary bonuses and commissions) ÷ hours worked.
- Overtime owed = (hours over 40) × 0.5 × regular rate if you were paid straight time for those hours; × 1.5 × regular rate if you weren't paid at all for them.
- Multiply by weeks (up to 104 or 156).
- Double it for liquidated damages.
Example: paid $16/hour, worked 48 hours a week for a year, paid straight time for the extra 8. Owed: 8 × $8 × 52 = $3,328, doubled = $6,656.
How to claim
Option A: Department of Labor (free). Wage and Hour Division: online complaint or 1-866-4-USWAGE. An investigator contacts the employer, reviews records, and can recover back wages for you and coworkers. Anonymous as far as possible; retaliation is illegal. Typical timeline: months.
Option B: State labor department. Often faster, and state law may give more (daily overtime, meal/rest break premiums, waiting-time penalties). California's Labor Commissioner, New York's DOL, Texas Workforce Commission (payday claims within 180 days), etc.
Option C: Private attorney. For larger claims or many coworkers, a wage-and-hour lawyer files in court on contingency; the employer pays fees if you win. Collective actions are common for off-the-clock and misclassification cases.
Before you file: gather pay stubs, schedules, time records or your own log, job description, offer letter, any texts asking you to work off the clock. You can also ask HR in writing for your time and pay records; some states require them to provide those within 21 days.
Retaliation
Firing, cutting hours, or threatening you for complaining about wages violates the FLSA and state laws. Remedies include reinstatement, lost wages, and additional damages. Document the timeline.
FAQ
I signed an agreement saying I'm exempt / a contractor
Your rights under the FLSA can't be waived by contract. What matters is the salary, the duties, and the working relationship.
My employer says overtime wasn't "approved"
If they knew or should have known you worked it, they must pay it. They can discipline you for the policy violation, not withhold pay.
How long do I have?
2 years from each underpayment (3 if willful). State claims can be longer (California 3–4 years).
I'm undocumented
The FLSA covers all workers regardless of immigration status; the DOL does not ask.