If your employer hasn’t paid you for overtime hours you’ve worked, you’re not alone—and you have legal options. Federal and state laws require most employers to pay overtime, and violations are more common than many workers realize. You may be entitled to recover not just your unpaid wages, but additional damages as well.
This article is for informational purposes only and does not constitute legal advice. Laws vary significantly by state.
Quick Answer
You can sue your employer for unpaid overtime if you’re a non-exempt employee who worked more than 40 hours in a workweek and wasn’t properly compensated. Federal law (the Fair Labor Standards Act) and state laws protect your right to overtime pay. You may recover your unpaid wages plus an equal amount in liquidated damages, and your employer may be required to pay your attorney fees.
Understanding Overtime Pay Requirements
The Fair Labor Standards Act (FLSA)
The FLSA is the primary federal law governing overtime pay. Under the FLSA:
- Overtime rate: 1.5 times your regular hourly rate (“time and a half”)
- Overtime threshold: Hours worked over 40 in a single workweek
- Who’s covered: Most private sector employees, plus federal, state, and local government workers
State Laws May Provide More
Many states have overtime laws that are more generous than federal law:
| State | Additional Protections |
|---|---|
| California | Daily overtime (over 8 hours/day), double time (over 12 hours) |
| Colorado | Daily overtime (over 12 hours/day) |
| Alaska | Daily overtime (over 8 hours/day) |
| Nevada | Daily overtime (over 8 hours/day at lower wage rates) |
When state and federal laws differ, employers must follow whichever law is more favorable to employees.
Are You Entitled to Overtime? Exempt vs. Non-Exempt
The critical question is whether you’re classified as exempt or non-exempt from overtime requirements.
Non-Exempt Employees (Entitled to Overtime)
If you’re non-exempt, you must receive overtime pay for hours over 40 per week. Most hourly workers are non-exempt.
Exempt Employees (Not Entitled to Overtime)
Certain employees are exempt from overtime requirements. To be exempt, you must:
- Earn at least $684/week ($35,568/year) on a salary basis
- Perform specific job duties that fall into an exempt category
Common Exemption Categories
| Exemption | Typical Duties |
|---|---|
| Executive | Manage the business or a department, supervise 2+ employees, have hiring/firing authority |
| Administrative | Office or non-manual work related to business operations, exercise independent judgment |
| Professional | Work requiring advanced knowledge in a field of science or learning |
| Computer Employee | Systems analyst, programmer, software engineer (also must meet salary threshold) |
| Outside Sales | Primarily make sales away from employer’s place of business |
Misclassification Is Common
Many employers incorrectly classify workers as exempt to avoid paying overtime. Warning signs of misclassification:
- Your job title sounds managerial but you don’t actually supervise anyone
- You’re paid salary but your duties are routine and don’t require independent judgment
- You earn less than $684/week but are told you’re exempt
- You’re called an “independent contractor” but work like an employee
If you’ve been misclassified, you may be owed years of back overtime pay.
What You Can Recover
If your employer violated overtime laws, you may be entitled to:
Unpaid Wages
The overtime pay you should have received—calculated at 1.5 times your regular rate for all overtime hours.
Liquidated Damages
Under the FLSA, you can recover an amount equal to your unpaid wages as liquidated damages. This essentially doubles your recovery. Courts presume liquidated damages apply unless the employer proves it acted in good faith.
Attorney Fees and Costs
The FLSA requires employers who violate overtime laws to pay the employee’s reasonable attorney fees. This makes it economically feasible to pursue even moderate claims.
State Law Damages
Some states provide additional penalties:
- California: Waiting time penalties, interest, civil penalties
- New York: 100% liquidated damages, plus interest
- Massachusetts: Automatic treble (triple) damages
Statute of Limitations
You have limited time to file a claim for unpaid overtime:
| Claim Type | Time Limit |
|---|---|
| FLSA – standard | 2 years from each violation |
| FLSA – willful violation | 3 years from each violation |
| State law | Varies (typically 2-6 years) |
Because overtime violations are ongoing, each unpaid paycheck starts a new limitations period. But the longer you wait, the more back pay you lose.
How to File an Overtime Claim
You have several options for pursuing unpaid overtime:
Option 1: File a Complaint with the Department of Labor
The U.S. Department of Labor’s Wage and Hour Division investigates FLSA violations at no cost to you.
Pros:
- Free
- No attorney needed
- DOL can recover wages on your behalf
Cons:
- DOL has limited resources and may not take every case
- Process can be slow
- You have less control over the case
Option 2: File a State Wage Claim
Most states have labor departments that handle wage complaints. State agencies may be more responsive than federal agencies for smaller claims.
Option 3: File a Lawsuit
You can sue your employer directly in federal or state court.
Pros:
- More control over your case
- Can pursue liquidated damages and attorney fees
- May proceed as a collective action (similar to class action)
Collective and Class Actions
If your employer has a policy of not paying overtime to many workers, you may be able to join or start a collective action (under FLSA) or class action (under state law). These cases:
- Combine claims of multiple employees
- Create efficiencies for smaller individual claims
- Put more pressure on employers to settle
- May result in company-wide policy changes
Common Employer Violations
Watch for these common overtime violations:
Off-the-Clock Work
Requiring or permitting work before clocking in, after clocking out, or during unpaid breaks.
Examples:
- Setting up equipment before your shift “starts”
- Answering emails after hours
- Working through lunch while “clocked out”
Improper Rounding
While some time rounding is legal, employers can’t round in ways that systematically favor them.
Comp Time Instead of Overtime
Private employers generally cannot offer compensatory time off instead of paying overtime. (Government employers have more flexibility.)
Averaging Hours Across Pay Periods
Overtime is calculated weekly. Employers can’t average a 50-hour week with a 30-hour week to avoid overtime.
Misclassifying Employees
Calling workers “managers,” “administrators,” or “independent contractors” when their actual duties don’t qualify for exemption.
Steps to Take
1. Document Your Hours
Keep your own records of hours worked, separate from your employer’s timekeeping:
- Note start and end times daily
- Record any work done off-the-clock
- Save emails, texts, or other evidence of after-hours work
- Keep copies of pay stubs
2. Review Your Pay Stubs
Look for discrepancies between hours worked and hours paid. Check that overtime hours are paid at 1.5x your regular rate.
3. Understand Your Classification
Research whether you’re properly classified as exempt. The job title doesn’t control—actual job duties do.
4. Consult an Employment Attorney
Many employment lawyers offer free consultations and take overtime cases on contingency. An attorney can:
- Evaluate whether you have a valid claim
- Calculate what you’re owed
- Advise on the best forum (DOL, state agency, or court)
- Handle the legal process
Retaliation Is Illegal
The FLSA prohibits employers from retaliating against employees who:
- File a complaint or lawsuit
- Testify in an overtime case
- Discuss wages with coworkers
If you’re fired, demoted, or otherwise punished for asserting your overtime rights, you may have an additional claim for retaliation.
Frequently Asked Questions
Am I entitled to overtime if I’m paid salary?
Being paid salary doesn’t automatically make you exempt from overtime. You must also earn at least $684/week AND perform exempt job duties. Many salaried workers are misclassified and entitled to overtime.
Can my employer make me work overtime?
Generally, yes—employers can require overtime. But they must pay you for it. Refusing to work mandatory overtime may be grounds for discipline, but working overtime without pay is illegal.
What if I agreed to work without overtime pay?
Your agreement doesn’t matter. Overtime rights under the FLSA cannot be waived. Even if you signed something saying you’d work without overtime, you’re still entitled to it.
How far back can I recover unpaid overtime?
Under the FLSA, you can recover overtime going back 2 years (or 3 years if the violation was willful). State laws may allow recovery for longer periods.
Can I be fired for filing an overtime claim?
Firing you for asserting your overtime rights is illegal retaliation. If this happens, you can sue for reinstatement, back pay, and damages.
When to Contact a Lawyer
Consider consulting an employment attorney if:
- You believe you’ve been misclassified as exempt
- You regularly work overtime without proper pay
- Your employer requires off-the-clock work
- You’re owed significant back wages
- You fear retaliation for raising concerns
- Multiple coworkers have the same issue
Many employment lawyers handle overtime cases on contingency, meaning you pay nothing unless you recover wages.
Last updated: January 2025
This article provides general information about overtime laws in the United States. Laws vary by state and individual circumstances. Consult with a qualified employment attorney in your state for advice specific to your situation.
