Minimum Wage, Overtime and Unpaid Wages

1Step 1: Work out what you should have been paid

The minimum wage

The federal minimum wage is $7.25 an hour and has been since July 24, 2009. About 30 states and D.C., and many cities, set higher minimums, often adjusted each year. When more than one law covers you, you are entitled to the highest rate. Federal law allows a youth wage of $4.25 an hour for workers under 20 during their first 90 days with an employer.

Tipped employees can be paid a lower cash wage, $2.13 an hour under federal law, with the employer counting up to $5.12 an hour of tips toward the minimum. If tips do not bring you up to the full minimum in a workweek, the employer must make up the difference. Several states do not allow a lower tipped wage at all.

Overtime

Covered employees who are not exempt must be paid at least one and a half times their regular rate for hours worked over 40 in a workweek. Each workweek stands alone, so hours cannot be averaged over two weeks, and private employers generally cannot give comp time instead of overtime pay. Hours worked at two locations of the same employer in one week are added together. Overtime is figured on your regular rate, which includes most shift differentials, commissions and bonuses promised in advance, not only your base hourly pay.

Being paid a salary does not by itself make you exempt. To be exempt as an executive, administrative or professional employee, you generally must earn a salary of at least $684 a week, or $35,568 a year, and your job duties must meet the test for that exemption. Many salaried workers in roles such as assistant manager or office staff are owed overtime.

2Step 2: Look for the violations that hide in plain sight

• Off-the-clock work: time spent before or after a shift, in required meetings, or answering messages from home generally counts as work.
• Short breaks: rest breaks of 5 to 20 minutes must be paid.
• Travel and on-call time: travel between job sites during the workday counts as work, and so can on-call time when you must stay at the workplace or cannot use the time freely.
• Deductions: charges for uniforms, tools or register shortages cannot bring pay below the minimum wage or cut into overtime.
• Tips: employers, managers and supervisors cannot keep any part of employees' tips.
• Misclassification: calling a worker an independent contractor does not make them one; the law looks at how much the employer controls the work and whether the worker is really in business for themselves.

When and how a final paycheck must be paid after you leave a job is set by state law, and some states impose penalties for paying it late.

3Step 3: Add up what you are owed

Back wages are the difference between what you were paid and what the law required, week by week. Take a worker on $16 an hour who works 45 hours every week and is paid $16 for each of them. The extra half-time for the five overtime hours, $8 an hour, comes to $40 a week, or $2,080 over a year. In a lawsuit, the worker may also recover an equal amount as liquidated damages, and the employer may have to pay attorney's fees.

A rough total helps you decide where to file and whether to talk to a lawyer; the agency or court will do the exact calculation from the records.

4Step 4: Watch the clock

The Fair Labor Standards Act allows two years for most violations and three years for willful ones, and the time runs back from the date you file a lawsuit. Each week you wait, the oldest week of unpaid wages can drop out. A complaint to the Wage and Hour Division does not stop that clock for a private lawsuit, which keeps running until you file in court, so if your claim is old or large, talk to a lawyer early. State laws often allow longer periods and may give more protection, so check yours.

5Step 5: Gather your own records

Your employer must keep time and pay records, but your own notes are often the strongest evidence. Start now, even if past weeks are missing:

• Each day, the date, when you started and stopped, any unpaid meal breaks, and tips received.
• Pay stubs, and photos of posted schedules.
• Texts or emails about hours, pay or work done after the shift.
• The names of coworkers in the same situation.

Store copies somewhere other than an employer's phone or computer, which you may lose access to.

6Step 6: File the complaint

Call the Wage and Hour Division at 1-866-487-9243, file through its website, or visit a local office. There is no charge to file or for the investigation, complaints are confidential, and help is available in many languages. Your immigration status does not affect your right to be paid for work you did.

Have your name and contact details, the employer's name, address and phone number, your manager's name, the work you did, and how and when you were paid. You can also file with your state labor department, which enforces state minimum wage and final-pay laws, or talk to a lawyer about a private lawsuit; many take wage cases without charging upfront.

7Step 7: Know what happens next, and what cannot happen

The Wage and Hour Division reviews the complaint and may investigate, which can include reviewing payroll records and interviewing workers. If it finds a violation, it can supervise payment of back wages, sometimes for other workers as well. It does not take every case. Read anything you are asked to sign: accepting back wages paid under the Division's supervision generally means giving up the right to sue for those same wages, so if you think you are owed more, talk to a lawyer before you sign.

An employer cannot fire, demote, cut hours or otherwise punish you for asking about your pay, filing a complaint or cooperating with an investigation. If that happens, report it to the Wage and Hour Division as well. If you lose your job or your hours are cut, you may qualify for unemployment benefits while the wage claim is pending. And if you are owed overtime, only federally required overtime counts for the new tax deduction for overtime.

9Where this guide stops

Exemptions and coverage are detailed, and state laws often give more protection than federal law. The salary level for exempt workers has changed over the years through rules and court decisions, so check the Department of Labor for the current figure. This guide is general information, not legal advice.