Unpaid Overtime: How to Estimate an FLSA Back Pay Claim

Unpaid Overtime: How to Estimate an FLSA Back Pay Claim

Many workers never learn that they were owed overtime, or learn it years later. The Fair Labor Standards Act gives non-exempt employees time-and-a-half for hours over 40 in a week, and the right to recover what was not paid. The Overtime Back Pay (FLSA) Claim Calculator gives a first estimate of the amount, so you know whether the issue is worth pursuing.

The overtime rule

For each workweek, hours over 40 must be paid at 1.5 times the regular rate. A workweek is a fixed period of seven days, and hours cannot be averaged over two weeks. The regular rate includes most pay that you receive, such as shift differentials and non-discretionary bonuses, not just the base wage.

Hourly workers

If you earn $22 an hour and work 50 hours in a week, the overtime rate is $33 and you are owed 10 hours at $33, which is $330 for that week. If your employer paid the extra hours at $22, only the extra half ($11 an hour, or $110) is missing. The tool has a box for overtime already paid each week, so it subtracts what you received.

Salaried workers

A salary does not automatically mean no overtime. The salary must meet the legal threshold and the job duties must fit an exemption, such as executive, administrative or professional. If a worker is not exempt and is paid a fixed weekly salary for a fixed number of hours, the regular rate is the salary divided by those hours. Use the salary option and the hours your salary was meant to cover.

How far back you can go

A claim can generally cover the two years before it is filed, or three years if the employer's violation was willful. Each pay period has its own clock, so old weeks drop out gradually. The tool limits the weeks to 104 or 156 and shows a warning when you enter more.

Liquidated damages

An employer that violates the overtime rule normally owes an amount equal to the unpaid wages as liquidated damages, unless it shows that it acted in good faith and had reasonable grounds. That can double the claim. The court may also award attorney's fees to a worker who wins. The calculator adds the liquidated amount when the box is ticked.

A worked example

A worker earns $22 an hour, works 50 hours a week and receives straight time with no premium. The regular rate is $22, the overtime rate is $33, the overtime per week is $330, and over 104 weeks the unpaid overtime is $34,320. With liquidated damages the potential claim is $68,640. If the employer paid the extra hours at straight time, the unpaid half-time is $110 a week, or $11,440 over 104 weeks.

How to prepare

Keep or reconstruct time records: calendars, text messages, emails, payroll stubs and a list of the hours you remember. If the employer did not keep records, the law lets the worker's reasonable estimate stand. File a complaint with the Department of Labor's Wage and Hour Division, or talk to an employment lawyer, many of whom take overtime cases on contingency.

What the tool does not decide

It does not determine whether you are exempt, whether state law gives more protection or whether the employer will contest the claim. It is an educational estimate, not legal advice.

Common questions

Does a signed agreement to work extra hours change anything? Generally no; the right to overtime cannot be waived by a private agreement for non-exempt workers.

What if I was paid in cash or off the books? The law still applies. Gather any proof of hours and pay, such as messages, bank deposits and calendars.

Can I be fired for asking? Retaliation for asserting overtime rights is illegal, and a separate claim may exist.

Does a state law matter? Several states, such as California, require overtime after eight hours in a day or double time in some cases, and can give a longer period. Ask a local lawyer.