Unpaid overtime: your rights and how to claim it

Who gets overtime, how it is counted and what to do if you weren't paid.

If you worked more than 40 hours in a week and got your normal rate for every hour, or a flat amount no matter how long you worked, you may be owed overtime. This guide explains who gets overtime, how it is counted and how to claim it.

The federal rule

Under the Fair Labor Standards Act, covered workers who are not exempt must get at least 1.5 times their regular rate of pay for every hour over 40 in a workweek (Fact Sheet #23). A few details matter:

  • The workweek is fixed. It is a regular period of 168 hours, seven 24-hour days in a row. It can start on any day, but hours can’t be averaged over two or more weeks. Working 50 hours one week and 30 the next still means 10 overtime hours.
  • No daily or weekend rule under federal law. Federal law doesn’t require extra pay for weekends, holidays or long days as such. Some states do (below).
  • The regular rate counts most pay. It includes most of what you are paid for work, and it can’t be less than the minimum wage.
  • You can’t give it up. An agreement to waive overtime is not valid.
  • A flat amount is not overtime. A lump sum paid for overtime work, whatever the hours, doesn’t count as overtime pay.

Salary, day rates and “exempt” jobs

Being paid a salary does not by itself mean you get no overtime. Job titles do not decide who is exempt. To be exempt as an executive, administrative or professional employee, a worker generally must meet duties tests and be paid a salary of at least $684 a week (Fact Sheet #17A).

If you get a fixed salary for a week longer than 40 hours, overtime is still owed. The Department of Labor’s example: a $405 salary for a 45-hour week gives a regular rate of $9.00 ($405 ÷ 45), and the 5 overtime hours are owed an extra half rate, $4.50 each, so $22.50 more (Fact Sheet #23). Our calculator uses this method for day rates and salaries.

Being called an “independent contractor” doesn’t settle it either. If you are really an employee under the law, you are entitled to minimum wage and overtime (US DOL: Misclassification).

States with daily overtime

A few states count overtime by the day as well as by the week. Our calculator can count these rules if you enter your hours for each day.

  • California: You get 1.5 times your regular rate for hours over 8 in a workday, over 40 in a workweek, and for the first 8 hours on the seventh day in a row you work in a workweek.
  • Alaska: You must get 1.5 times your regular rate for hours over 8 in a day and over 40 in a week (AS 23.10.060).
  • Nevada: If you earn less than 1.5 times the minimum wage ($18.00 an hour), you get 1.5 times your regular pay for hours over 8 in a 24-hour workday and for hours over 40 in a week.
  • Colorado: You get 1.5 times your regular rate for hours over 40 in a workweek, over 12 in a workday, or over 12 consecutive hours, whichever pays you more.

Other state differences

Most states follow the 40-hour weekly rule, but some state laws differ for some jobs. Where federal law also covers you, the rule that is better for you applies.

  • Kansas: Most workers are covered by federal law: 1.5 times the regular rate after 40 hours in a workweek.
  • Minnesota: Minnesota state law requires 1.5 times your regular rate only after 48 hours in a workweek.

How to work out what you are owed

  1. List each workweek and the hours you worked in it.
  2. Find your regular rate: your hourly rate, or your pay for the week divided by the hours it covered (at least the minimum wage).
  3. Multiply the hours over 40 by 1.5 times that rate (by half the rate extra if your salary already paid straight time for all hours).
  4. Subtract what you were actually paid.

Or use the wage-theft calculator, which does this with your state’s rules.

How to claim it

Ask your employer in writing first, with our demand letter. If you are not paid, file with your state labor office or with the US Department of Labor’s Wage and Hour Division at 1-866-487-9243. Under federal law you can recover the unpaid overtime plus an equal amount as liquidated damages, and a worker who sues can recover attorney’s fees and costs. The deadline is generally 2 years, or 3 years if the violation was willful (Handy Reference Guide). Many states add their own penalties; see your state’s page.

It is illegal to fire or punish you for complaining about overtime or filing a complaint (Fact Sheet #77A).