Workers contact me every week with some version of the same story. They worked hours their employer did not pay them for, or they worked overtime without overtime pay, or they were called a contractor when they were really an employee. They are not sure whether they have a legal claim, and they are not sure what to do about it.
This article walks through the steps I recommend. None of them require hiring a lawyer. All of them put a worker in a stronger position to evaluate the claim and to recover what they are owed.
Step 1. Document the hours you actually worked
The most important record in any unpaid wages case is the worker's own record of hours worked. If your employer's time records are accurate, that is the first place to start. If they are not, start keeping your own. Write down your start time, end time, and any time worked off the clock. Take a photo of the schedule. Save any text messages or emails about hours or pay.
A handwritten log on a notepad is admissible evidence. A note in your phone is admissible evidence. The legal rule is that the employer has the burden of keeping accurate records. If the employer's records are wrong or incomplete, the worker's reasonable estimate of the hours worked is allowed to fill the gap.
Step 2. Document how you were paid
Save every pay stub you have access to. Take a photo if you have to. If your employer pays you by direct deposit, log into your bank account and screenshot every deposit. If you have a W-2 or a 1099, save it. If you signed any document calling you an independent contractor, save a copy.
These records establish the regular rate the law uses to calculate overtime. Without them, the calculation is harder but not impossible. With them, the calculation is straightforward.
Step 3. Do not confront the employer about the pay before you have a plan
Federal law protects workers from retaliation for asserting overtime rights. The protection is real and the remedies are strong, but enforcing the right after a firing is more complicated than enforcing the wage claim before the firing.
If you raise the pay issue with the employer and the employer fires you, you will have both a wage claim and a retaliation claim. That is a worse outcome than getting the wage claim resolved cleanly. The better approach is to contact a wage and hour lawyer first, evaluate the claim, and then decide whether to raise the issue with the employer directly. In most cases the lawyer will raise it for you in a demand letter, which puts the employer on notice that the worker has counsel and is serious.
Step 4. Get a free consultation with a wage and hour lawyer
Most wage and hour lawyers, including this firm, offer free consultations and work on contingency. There is no out-of-pocket cost to find out whether your situation supports a claim.
The consultation will cover your pay structure, your hours, what kind of work you do, how the employer tracked time, and what records you have. The lawyer should be able to tell you within a few minutes whether the situation looks like a typical overtime violation or not.
Step 5. Decide how to proceed
Most cases begin with a demand letter to the employer rather than a lawsuit. The demand letter explains the claim, attaches calculations, and proposes a settlement amount with a deadline for response. A meaningful percentage of cases resolve at that stage, which is faster and less expensive for everyone involved.
If the employer refuses to make a reasonable offer, the next step is filing suit in federal court. The lawsuit is usually filed individually, sometimes as a collective action on behalf of similarly situated workers. The two paths are different in important ways, and the choice depends on the facts of the case.
The clock is running
The federal overtime statute of limitations is two years from the date the lawsuit is filed, or three years for willful violations. Every week of delay is a week of damages that may fall outside the recoverable period. The longer a worker waits, the smaller the recovery becomes.
If you think you have unpaid wages, the most useful next step is a free consultation.