What is Unpaid Overtime?

Legal content fact checked by Charles E. Joseph

Your questions about workers’ rights, answered

Wage Theft Overtime pay compensates employees for working overtime.

But what if your employer doesn’t pay for all the hours you worked? Or what if they refuse to pay overtime? Is it illegal not to pay overtime?

Withholding wages is a form of wage theft. And unpaid overtime laws protect your rights.

If your employer owes you unpaid overtime, you can file a lawsuit to recover your back pay.

This FAQ explains overtime pay, what counts as unpaid overtime, and how to file an unpaid overtime claim.

Unpaid Overtime FAQs

What is overtime pay?

Employees who work more than 40 hours in a workweek qualify for overtime pay. Under the Fair Labor Standards Act (FLSA), employees must receive time-and-one-half pay for any hours over 40 hours in a week.

For example, an employee who makes $10 per hour must receive $15 per hour if they work more than 40 hours in a week. Employers cannot average hours over a pay period to avoid paying overtime.

However, some employees are exempt employees which means they do not qualify for overtime pay. Examples include executives and professionals.

How much is overtime pay?

Overtime pay is one and a half times your normal pay.

The FLSA bases overtime pay on your regular hourly rate. Take an employee who makes $15 per hour. Their overtime rate would be $22.50 per hour, or $15 plus half of $15.

An employee who makes $20 per hour would receive $30 per hour in overtime pay.

However, the federal government sets some restrictions on overtime pay.

As of 2020, anyone earning less than $684 per week, or an annual salary of $35,568, qualifies for overtime. Employees earning more may also still qualify if they do not fall into an exemption category.

Some areas set much higher thresholds for overtime pay. In New York City, for example, employers making less than $1,125.00 per week, or an annual salary of $58,500 per year, automatically qualify for overtime pay.

What is unpaid overtime?

Unpaid overtime is money an employee earned by working more than 40 hours in a week that their employer didn’t pay.

For example, consider a server who makes $15 per hour. The server worked 45 hours one week and 50 hours the next. However, their employer only pays them $15 per hour for a total of 95 hours worked during the pay period. That server’s unpaid wages – 15 hours at $22.50 per hour – count as unpaid overtime.

Or, imagine an administrative assistant who makes $10 per hour and works 50 hours during a single week. Their employer only paid them for 40 hours at $10 per hour. In that case, the assistant should receive 10 hours of pay at $15 per hour, or time-and-one-half.

Unpaid overtime is a form of wage theft. Employers must pay their employees for all hours worked — at the appropriate rate of pay.

Is unpaid overtime legal?

If you haven’t been paid for working overtime, you’re probably wondering, “is it illegal not to be paid overtime?”

Overtime laws protect workers. Withholding earned wages, including overtime pay, violates the law. However, some employees are “overtime exempt,” meaning they are not eligible for overtime. This includes many – but not all – employees who receive a salary rather than hourly pay.

If you’re eligible for overtime and your employer refuses to pay overtime or pays your regular work for overtime hours, you can file a claim for unpaid overtime.

How do you file a claim for unpaid overtime?

You can file a claim for unpaid overtime pay with the U.S. Department of Labor’s Wage and Hour Division. WHD enforces the FLSA and investigates unpaid wages. If WHD finds evidence of unpaid wages, they can pursue the claim on your behalf.

You can also file a claim with your state labor office. If, for example, your employer violated state overtime laws but not the FLSA, file with your state agency.

The WHD and state agencies limit the amount of time to file an unpaid overtime claim.

You can also file a lawsuit in court to recover unpaid wages. An unpaid overtime lawyer can help prove your case and recover back wages.

How can you prove unpaid overtime?

In an unpaid overtime case, the burden of proof is on the employee. That means employees need to prove they worked overtime hours and did not receive overtime pay for those hours.

How can you prove unpaid overtime? The first step is keeping records of your hours worked and wages.

Keep in mind that employers must keep accurate records by law. If your employer did not keep these records, it changes the burden of proof for employees. For example, employees can prove their hours worked by testifying or submitting an affidavit.

Keeping your own records will strengthen your case. By writing down your hours worked and comparing it to your pay, you’re more likely to catch unpaid overtime pay and prove your case. An unpaid overtime lawyer can help prove unpaid wages.

How far back can you collect unpaid overtime?

There is a statute of limitations on collecting unpaid overtime. But how far back can you collect overtime pay?

Federal law sets a limit of two years. That means employees must bring a claim for unpaid overtime pay within two years of their employer withholding the pay.

However, if the employer “willfully” violated wage laws, the statute of limitations extends to three years.

Some states extend this statute of limitations. In New York, for example, employers have six years to file a claim for unpaid overtime pay or other forms of wage theft.

What is an unpaid overtime lawyer?

An unpaid overtime lawyer specializes in filing claims for unpaid wages. Also known as a wage theft lawyer or an employment lawyer, these attorneys understand wage and hour laws, FLSA rules, and overtime laws.

What unpaid overtime law protects you? It depends on your city and state. Contact an unpaid overtime lawyer in your state to learn more about state unpaid overtime laws, the time limit to file a claim in your state, and the process of filing an unpaid overtime lawsuit.

Who is exempt from overtime pay?

When it comes to overtime pay, you’ve probably heard the phrases “non-exempt” and “exempt.” What does exempt vs. non exempt mean? Exempt employees are not eligible for overtime.

Nearly all hourly employees are eligible for overtime, while many salary employees are not eligible. Employees with executive, administrative, or professional duties are exempt from overtime.

However, employers do not always accurately classify employees. If you’re labeled exempt when you actually qualify for overtime, you can file a lawsuit for unpaid overtime. An overtime lawyer can help you determine whether you have a case.

How much can you win in an unpaid wages lawsuit?

During an unpaid wages or overtime lawsuit, you can recover back pay, interest, liquidated damages, penalties, and attorneys’ fees.

Unpaid overtime settlements typically include the following:

Back pay: Back pay is the money you should have been paid, also known as your unpaid wages or unpaid overtime pay. A court can award back pay for all the money your employer owes you.
Interest: Every unpaid overtime law sets an interest rate for unpaid wages. Your employer must pay interest on the back pay.
Liquidated damages: In some states, wage and hour laws offer liquidated damages on top of back pay. Under federal law, if your employer “willfully” withheld unpaid overtime pay, they may have to pay liquidated damages equal to your back pay, also known as double damages.
Penalties: In addition to double damages, some states add penalties for employers who engage in wage theft. In some states, the penalties equal a month of unpaid wages.
Attorneys’ fees: If you win your lawsuit, your employer has to pay your attorneys’ fees and any other costs of filing the lawsuit.

What is an unpaid overtime attorney?

Unpaid overtime is against the law. An unpaid overtime lawsuit uses the court system to recover unpaid wages from your employer. An unpaid overtime attorney will help you build a case against your employer and file a lawsuit to receive back pay and penalties.

Many lawyers offer free, confidential consultations to discuss your potential case and your legal options.

What can you do about unpaid overtime?

If your employer didn’t pay or underpaid your overtime pay, an employment lawyer can help. Depending on your state, you can sue for back pay, overtime pay, and penalties.

Reach out to New York unpaid wages lawyer Charles Joseph for a free consultation today.

Learn more about other common forms of wage theft and the penalties.