How To File A Wage & Overtime Lawsuit

How To File A Wage & Overtime Lawsuit 2017-08-02T13:23:34+00:00

Think you may have a wage and hour claim against your employer?

Fair Labor Standards: Protecting American Workers

The Fair Labor Standards Act is a federal law, applicable in all 50 states, that guarantees the majority of employees a minimum hourly wage and overtime pay. Many states also have their own wage and hour laws that are more generous to workers than the federal standard.

Hundred Dollar Bills

To generalize a little, wage and hour violations occur when employers violate any of these federal or state laws. It doesn’t matter whether or not your employer meant to violate the law. Violations are illegal. They also happen to be a form of theft.

When your employer violates your wage and hour rights, they have stolen from you. You have a legal right to get that money back. In fact, you may even have the right to secure “liquidated damages” – double the money you’re owed. So how do you do that?

How To Win Back Wages

Faced by a minimum wage or overtime violation, employees have two basic options:

  • File a complaint with the US Department of Labor (or a state-level labor agency)
  • File a civil wage and hour lawsuit

These two avenues of recourse are mutually-exclusive. You can’t do both at the same time. File a civil lawsuit and you lose the right to pursue compensation with a government agency’s help. Similarly, if you secure back wages through the government, a subsequent private lawsuit won’t withstand scrutiny in court.

Why You Should Choose To File A Civil Lawsuit

Which avenue should you choose?

We think there are good reasons to go the private route and pursue compensation through the civil justice system. Government agencies, as we all know, are slow, under-funded and routinely hampered by red tape. They’re also trying to handle hundreds of wage complaints at the same time, meaning your case won’t necessarily be their priority. Complaints get “lost” in the system. Workers can wait months before hearing about any progress in their case.

Private attorneys, on the other hand, are dedicated to protecting your best interests all the time. Good lawyers will take your calls day and night. They’ll give you an honest assessment of your case’s potential. You won’t get lost.


More importantly, most experienced wage and hour attorneys will work without charging you anything. Private lawyers who handle labor law cases usually work on a “contingency-fee” basis. That means you owe nothing until after they’ve helped you win compensation.

Don’t win compensation? You don’t pay.

Even better, courts across the country have recognized that employees shouldn’t be forced to pay attorneys huge sums of money just to secure their rightfully-earned back wages. Instead, most courts will shift this burden onto employers. As a result, most workers who win their wage and hour lawsuits are awarded their back wages, along with all legal fees and costs.

Who’s Covered By Federal Labor Law?

The vast majority of America’s workers are covered by the Fair Labor Standards Act (FLSA). The law, however, was created to protect low-wage workers from exploitation, which is why the government included several “exemptions” that leave some employees out.

The standard exemption that employers take is called the “white collar exemption.” Take a look at the three requirements below:

  • you make at least $23,660 per year ($455 per week)
  • you get paid a salary, a fixed amount of money no matter how much you actually work
  • your primary job duties match the Labor Department’s descriptions of “executive,” “administrative” or “professional” work

If you satisfy all three of these conditions, you may be exempt from the Fair Labor Standards Act. That means you might not be entitled to the minimum wage or overtime. Satisfy two or fewer? Then you’re probably entitled to the protections of the FLSA. Importantly, your job title doesn’t matter. It’s all about how much you make, how you’re paid and what you do.

Salaried Workers

Note that many salaried employees are entitled to overtime wages. Only salaried employees who make at least $23,660 per year and perform primary job duties that could accurately be described as “executive,” “administrative,” or “professional” are exempt.

To learn more about these classifications, check out this guide from the Labor Department’s Wage & Hour Division.

Independent Contractors & Misclassification

As the US Labor Department notes, employee misclassification is likely the greatest threat to workers in America today. Employers in this country are allowed to classify workers, for the purposes of labor law, on their own. Turns out, many employers do it incorrectly. The most pressing problem now is the misclassification of employees as “independent contractors.”

Are You In Business For Yourself?

Independent contractors aren’t entitled to the minimum wage or overtime pay. Employees, for the most part, are. What’s the difference?

In principle, independent contractors are running their own private businesses. They market their services to multiple clients. They invest in their own equipment and professional development. They negotiate the prices of their services, rather than accepting the wage an employer dictates. They are free to hire their own helpers to get the work done faster.

Independent contractors, in short, are in business for themselves. Does that sound like an accurate description of your work? If so, you may be an independent contractor. If not, you’re probably an employee. Needless to say, the vast majority of employees are entitled to overtime and the minimum wage.

What Is The Federal Minimum Wage?

Today, the federal minimum wage is set at $7.25 per hour. While there are some major exceptions, most workers in the United States are entitled, by law, to a wage no less than $7.25. States, however, can set their own minimum wages. Many states have established minimum wages that are higher than $7.25 per hour. Employees are always entitled to the higher wage. When your state’s minimum wage is more than the federal minimum wage ($7.25), you should be paid at the higher rate set by your state’s legislature.

Workers Who Make Tips

Employees who receive tips are treated a little differently.

Any worker who usually receives at least $30 per month in tips is considered a “tipped” employee. Where these workers are concerned, the government says that tips can be considered part of the employee’s wages. That means employers are allowed to pay you less, in cash wages, than the minimum wage. Your boss can take a “tip credit,” reducing your hourly wage by the amount of tips you make in an hour.

Here’s an example. Let’s say you work 40 hours in a week and make $60 in tips during that period. Your hourly tip rate for that workweek would be $1.50, which is $60 divided by 40 hours. That’s the tip credit your employer is allowed to take. In calculating your wages for the week, your employer can subtract $1.50 from the federal minimum wage ($7.25) and make your hourly cash wage $5.75. In the end, your employer would have to pay you $230 in cash wages for the week: 40 hours at $5.75 per hour.

Limits To The Tip Credit

The crucial point, though, is that tipped workers are always entitled to the minimum wage. Your hourly cash wage and hourly tip rate must equal at least $7.25 to comply with federal law. Further, the max tip credit employers are allowed to take has been set at $5.12. That means the lowest cash wage a tipped worker can make is $2.13. Anything lower is illegal.

The tips you receive are your property. Your employer can’t take them. That’s a wage and hour violation. Some tip pooling schemes, on the other hand, are legal.

We’ve assumed, for our example, that you live in a state subject to the federal minimum wage. Again, there are many variations in state law that can change the picture. Where your state minimum wage is higher than the federal rate, your employer has to calculate your cash wage based on the higher wage. Moreover, some states have limited an employer’s ability to legally reduce a tipped worker’s cash wage. It’s always best to research both federal laws and your own state’s laws before moving forward.

How Should Overtime Be Paid?

Most employers in the United States are required to pay their workers overtime. These premium wages should be paid for any and all hours worked over 40 hours in a single workweek. It doesn’t matter whether or not your employer authorized you to work overtime. You should be paid for all the work you do.

The Department of Labor considers a workweek to be a “fixed and regularly recurring period of 168 hours – seven consecutive 24-hour periods.” In short, your own workweek doesn’t need to run from Monday to Monday. It can start on a Tuesday, Wednesday, Thursday, Friday, Saturday or Sunday. The only requirement is that, from your employer’s perspective, the workweek must last seven consecutive days.

An Overtime Example

When you work more than 40 hours in a single workweek, your employer should pay you overtime wages. Your overtime pay rate should be equal to one-and-a-half times your “regular rate,” which can include bonuses and commissions, in addition to an hourly cash wage. Here’s another example to illustrate this point:

Your normal pay rate for an hour’s work is $10. One week, you work 46 hours, bumping you over the 40 hour limit and making you eligible to receive overtime wages.

When your employer calculates your wages, they should pay you for the first 40 hours of work at your regular rate of $10. That’s a total of $400. The extra hours, though, should be paid at your overtime rate, which is 1.5 times $10, or $15 per hour. Six hours at $15 per hour is equal to $90. That’s your total overtime wage for the week. The final step is to add your normal wages, $400, to your overtime wages, $90, for a grand total of $490.

Variations In State Law

The federal government has no daily overtime requirements. There aren’t overtime requirements for working on the weekends or on holidays, either.

Federal law only establishes a weekly overtime standard. Some states, though, have instituted their own rules. California, for example, entitles workers to overtime wages for any hours worked over 8 in a single day. Check your own state’s statutes to make sure that your employer is following the law.

Contact An Unpaid Overtime Lawyer

Want more information about your legal rights? Contact our experienced overtime attorneys today to get the answers you need for free. Our lawyers offer a free, confidential, no obligation consultation to all employees who want to learn more about filing a civil lawsuit for unpaid wages. Just call now or fill out our online contact form to speak with an attorney.