Frequently Asked Questions about Unpaid Overtime

What is overtime?

Any hours worked over 40 hours in a week. If you work 45 hours in one week, you have earned five hours of overtime.

Is there a law that requires employers to pay more for overtime hours?

Yes. The Fair Labor Standards Act (FLSA) is a federal law which requires employer to pay one and a half times your normal hourly wage for overtime hours. Some states have additional laws regarding hours and wages.

Are all employees entitled to overtime?

Most employees are entitled to overtime, but there are some exceptions. The rules which apply to exemptions are very strict and the tests for each type of exemption vary. Exemptions can include executives, administrators, outside salespersons, and certain professionals. Employers often, intentionally or unintentionally, misclassify employees as exempt when they are legally entitled to overtime pay.

I am on a two-week pay cycle. If I work 50 hours one week and only 10 hours during the second week, for a total of 60 hours during the pay cycle, am I still entitled to overtime?

Yes. Overtime is based on how many hours you work each week, regardless of your pay cycle. In this case you would be entitled to 10 hours of overtime pay.

Am I entitled to overtime even though I am paid a salary rather than an hourly wage?

Maybe, some salaried positions are exempt, but not all. Even if you are paid a salary there are strict salary and duties tests which determine whether or not you are entitle to overtime pay. Simply being on a salary does not automatically make you exempt from overtime.

Am I entitled to overtime pay even though I did not get prior approval to work overtime hours?

Yes. Many employers will try to get out of paying overtime wages by claiming that you must have prior approval to work overtime, but employers are required to pay for overtime if they know or should have known that you were working overtime hours.

Does my employer have to allow me to work overtime?

No. Your employer can send you home early or adjust your schedule to prevent you from accumulating more than 40 hours in a week, but he or she cannot require you to work "off the clock" in order to prevent you from earning overtime pay.

Can my employer deduct lunch and break times from my hours?

Lunch breaks which last 30 minutes or more can be deducted from your hours. Shorter breaks cannot. Your break times cannot be added together to meet the 30 minute requirement. In other words, two twenty minute breaks in one day cannot be added together to total a deductible 40 minute break.

I am an independent contractor. Am I still entitled to overtime?

No, only employees are entitled to overtime. However, there are many factors which the courts consider when determining if a worker is an employee or an independent contractor. In some rare situations, you may be misclassified.

What can I do if I am being cheated out of overtime pay?

Report the violation to the U.S. Department of Labor and your state Department of Labor. Government agencies are often slow to take action, so you should also talk to an experienced labor law attorney right away.

If I report my employer or file a lawsuit, won't I lose my job?

You may, but if you do your employer can face fines and possibly criminal charges, and you may receive punitive damages. The FLSA prohibits employers for firing or discriminating against employees who take legal action for FLSA violations.

If you have been cheated out of overtime pay, contact an experienced employment law attorney today.