My employer didn't pay me overtime. What can I do?

Your rights to overtime and minimum wage

• Overtime at time and a half. Not less than one and a half times your regular rate for hours over 40 in a workweek.29 U.S.C. § 207
• The federal minimum wage. Not less than $7.25 an hour, in effect since July 24, 2009.29 U.S.C. § 206
• Records of your time and pay. Employers must keep employee time and pay records and display the official FLSA poster.FLSA
• No retaliation. An employer cannot retaliate against you for exercising your rights, filing a complaint or cooperating with an investigation.29 U.S.C. § 215(a)(3)

Paid on a 1099? Overtime law protects employees, and the contractor label does not decide: see independent contractor or employee.

Are you owed back pay? A quick check

• Count your hours for each workweek, not across two weeks. Overtime is counted per workweek.
• Compare the hours over 40 with what your pay stub shows for those hours.
• Check your state's minimum wage and overtime rules; they can give you more than federal law.
• Gather pay stubs, your own notes of hours worked, schedules and messages about your hours.

How to file a wage complaint, step by step

1. 1Collect your information. Pay stubs, personal records of hours worked and anything else about how your employer pays you.
2. 2Contact the Wage and Hour Division. Call 1-866-487-9243, reach out online, or visit a Wage and Hour office. Filing is free.
3. 3Your complaint stays confidential. The name of the person who complains and the nature of the complaint are not disclosed.
4. 4The Division decides the next step. It works with you to answer questions and decide whether an investigation is the right course.

How long do I have?

The FLSA has a two-year limit for violations that were not willful and a three-year limit for willful ones. Unless the violations were willful, back wages can only be recovered for two years from when they happened, so act early.

Do you need an unpaid wages lawyer? What it costs, and what you can recover

Many workers start with a free complaint to the Department of Labor. If a lot of money is at stake, you were fired or punished for complaining, or you are unsure whether you are exempt, talk to an employment lawyer or a legal aid office.

• Win in court, and the employer pays your lawyer. Under the FLSA, a court that rules for you must, on top of what it awards you, allow a reasonable attorney's fee to be paid by the employer, and the costs of the case. Ask any lawyer, before you sign, how their fee is set.29 U.S.C. § 216(b)
• Back pay, plus an equal amount. An employer that breaks the minimum wage or overtime rules owes the unpaid wages and an additional equal amount as liquidated damages: 100% more. A court may award less, or none, if the employer shows it acted in good faith and had reasonable grounds to believe it was not breaking the law.29 U.S.C. §§ 216(b), 260
• New York adds its own rule. A New York court allows a worker who wins the full underpayment, all reasonable attorney's fees, prejudgment interest and liquidated damages of 100% of the wages due, unless the employer proves a good faith basis. A first pay-frequency violation by an employer that paid at least semi-monthly is limited to lost interest instead. The deadline to sue under the state law is six years.N.Y. Lab. Law § 198(1-a), (3)
• A Department of Labor payment can end your own lawsuit. If you agree to accept back wages paid under the Department's supervision and they are paid in full, you give up your right to sue for those wages and the matching liquidated damages. Your right to sue also ends once the Department files its own complaint.29 U.S.C. § 216(c)

Questions for a first meeting: how the fee is set, and whether it comes only from what the employer is ordered to pay; whether you pay costs if you lose; whether the claim is under federal law, state law or both; and how much time your deadline leaves (see How long do I have?).

Other workplace problems, agency deadlines by state and a lawyer license check are on Do I need an employment lawyer?.

Common questions

Official sources

1. U.S. Department of Labor: Wages and the Fair Labor Standards Act dol.gov
2. U.S. Department of Labor: State minimum wage laws dol.gov
3. U.S. Department of Labor: How to file a complaint dol.gov
4. U.S. Department of Labor: Complaints and the investigation process (FAQ) dol.gov
5. U.S. Department of Labor: Handy reference guide to the FLSA dol.gov
6. 29 U.S.C. § 216: liquidated damages and attorney's fees govinfo.gov
7. 29 U.S.C. § 260: liquidated damages and good faith govinfo.gov
8. New York Labor Law § 198: costs and remedies in wage claims nysenate.gov

Rules in your state

Other states: federal law above is the floor; your state can add more.

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