Your Overtime Rights: How to Claim Unpaid Overtime

If your employer hasn't paid you the overtime you've earned, you have legal rights — and clear paths to recover what you're owed. This guide walks through what protections exist under federal and state law, how to document your hours, and the step-by-step process for filing a wage claim. You can recover up to two years of back wages (three for willful violations), plus liquidated damages and attorney fees.

Your fundamental overtime rights under FLSA

The Fair Labor Standards Act guarantees these rights to non-exempt workers:

• Right to OT pay. 1.5× regular rate for hours over 40 per week.
• Right to be paid for ALL hours worked. Off-the-clock work, training, mandatory meetings — all compensable.
• Right to accurate recordkeeping. Employers must maintain hours records.
• Right to be free from retaliation. It's illegal for employers to fire, demote, or punish workers for asking about wages or filing claims.
• Right to file a wage claim. Through the DOL or state labor agency.
• Right to sue for unpaid wages. Plus liquidated damages equal to the unpaid amount.

Common signs of overtime violations

1. You work over 40 hours but are told "we don't pay overtime." Likely illegal unless you're properly classified as exempt.
2. You're misclassified as an "independent contractor" while functioning as an employee.
3. Your employer averages hours across two weeks to avoid OT (illegal — each workweek stands alone).
4. You're given comp time instead of OT pay (illegal in private sector).
5. You're required to work "off the clock" for setup, training, or cleanup.
6. Your job title is "manager" but your duties are mostly non-managerial (working the register, stocking shelves, etc.).
7. Your hours are altered or shaved from time records.
8. Tipped workers are paid OT on the tipped wage rather than full minimum wage.

Step 1: Document everything

Before filing any claim, build your record:

• Track your hours independently. Use a notebook, calendar, or app. Note start/end times, breaks, off-the-clock work.
• Keep all pay stubs. If you don't have them, request copies — your employer is required to provide them.
• Save schedules, timesheets, emails. Anything showing the hours you worked.
• Note witnesses. Coworkers who can verify your hours.
• Keep your job description. Helpful for misclassification claims.

Step 2: Calculate what you're owed

Use our overtime calculator to estimate the unpaid wages for each week, then total them across the period. Don't forget:

• State daily OT (if applicable in your state)
• Double time (California, in specific cases)
• Bonuses that should have been included in the regular rate
• Any work performed off the clock

Federal claims can recover wages from 2 years back (3 years if willful). Some states allow longer lookback periods.

Step 3: Try addressing it internally first (optional)

For minor or potential misunderstandings, raising it with HR or your supervisor might resolve it quickly. Send a written follow-up so you have a record. If you face retaliation or your employer refuses, escalate.

Note: You're not required to address it internally before filing a wage claim.

Step 4: File a wage claim

Option A: US Department of Labor (federal)

The Wage and Hour Division (WHD) handles federal FLSA complaints.

• Phone: 1-866-487-9243 (1-866-4-USWAGE)
• Online: dol.gov/agencies/whd
• Cost: Free
• Confidentiality: Your name is protected

Option B: State labor agency

Many states have their own labor agencies that handle wage claims, often with stronger protections than federal law. Examples:

• California: Labor Commissioner's Office (DLSE)
• New York: NY Department of Labor
• Texas: Texas Workforce Commission
• Illinois: Illinois Department of Labor

State claims often resolve faster than federal claims.

Option C: Hire a wage and hour attorney

Many employment lawyers handle wage cases on contingency — they only get paid if you win. Look for:

• Free initial consultations
• Membership in NELA (National Employment Lawyers Association)
• Experience with FLSA collective actions

What you can recover

If your wage claim succeeds, you may recover:

• Unpaid wages. The actual OT you should have been paid.
• Liquidated damages. An equal amount as a "penalty" — effectively doubling your recovery.
• Attorney fees and costs. Paid by the employer if you win.
• Interest on unpaid wages (in many states).

Statute of limitations: Don't wait

• Federal FLSA: 2 years (3 years for willful violations)
• California: 3 years (4 with unfair business practices claim)
• New York: 6 years
• Most other states: 2-3 years

Every day you wait, you may lose another day of recoverable wages. File promptly.

What if you've been retaliated against?

If your employer fires, demotes, reduces hours, or harasses you for asking about overtime or filing a claim, you have a separate retaliation claim. Remedies can include:

• Reinstatement to your job
• Back pay from termination date
• Front pay (future lost wages)
• Compensatory damages for emotional distress
• Punitive damages in egregious cases

Free legal resources

• US DOL Wage and Hour Division: dol.gov/agencies/whd
• NELA (find an attorney): nela.org
• Workplace Fairness: workplacefairness.org
• Legal Aid Society (for low-income workers, by city)

Related guides

Disclaimer: This information is general legal education, not personalized legal advice. Consult an employment attorney for your specific situation.