Can a Salaried Employee Sue for Unpaid Overtime?

Many workers believe a salary disqualifies them from overtime pay. This is one of the most common misconceptions in the workplace, and it costs employees real money. Under federal law, a salary alone does not eliminate your right to overtime. Job titles do not either. What matters is what the law says about your actual duties and how you are paid, not what your employer chooses to call your position.

The Big Myth: “I’m Salaried, So No Overtime”

Many employers tell workers, “You’re on salary, so you don’t get overtime.” That statement is often incorrect.

The federal law that governs overtime pay is the Fair Labor Standards Act (FLSA). Under the FLSA, most workers must be paid time-and-a-half for every hour worked over 40 in a workweek. Being paid on a salary basis does not, by itself, change that rule.

For your employer to lawfully avoid paying overtime, it must establish that your position qualifies as “exempt.” The law sets a high bar for that classification, and the burden of proving exemption rests with the employer.

The Three Tests for Exempt Status

To be properly classified as exempt from overtime, your job generally must satisfy all three of the following tests. If even one is not met, you may be entitled to overtime pay.

1. Salary Basis Test

You must receive the same predetermined amount each pay period, regardless of the quantity or quality of work performed. Improper deductions can defeat exempt status.

2. Salary Level Test

You generally must earn at least $684 per week ($35,568 annually) under current federal regulations. Several states require a higher threshold.

3. Duties Test

Your primary job duties must fit within one of the FLSA’s specific exemption categories. The most common are the executive, administrative, and professional exemptions. For example, to qualify under the executive exemption, an employee generally must manage two or more full-time workers and have genuine authority over hiring, firing, or other significant employment decisions.

Signs You May Have Been Misclassified

You may have a potential overtime claim if any of the following apply to your situation:

• You receive a salary but spend most of your time on hands-on, non-managerial work.
• You have a title such as “manager” or “coordinator” but lack real authority to hire, fire, or make significant business decisions.
• You earn less than $684 per week.
• You regularly work long hours without additional pay, even though your day-to-day work is more about “doing” than “leading.”
• You were labeled an “independent contractor” but your work conditions resemble those of a regular employee.

Positions that are frequently misclassified include assistant managers, IT support workers, oil and gas field workers, certain healthcare staff, inside sales representatives, and entry-level office employees. Whether any particular worker has been misclassified depends on the specific facts of that worker’s job.

What You May Be Able to Recover

If a court or jury determines that an employer violated the FLSA, the law generally allows a successful plaintiff to recover:

• Back pay for all unpaid overtime wages.
• Liquidated damages in an amount equal to the unpaid wages, effectively doubling the recovery in many cases.
• Attorney’s fees and court costs, which the employer may be required to pay.

The amount any individual worker may recover depends on the specific facts of the case, including the number of unpaid overtime hours, the applicable rate of pay, and the period at issue. Past case results do not guarantee a similar outcome in any future matter.

How Long You Have to File

The FLSA imposes strict deadlines for filing wage claims:

• Two years from the date of the violation in most cases.
• Three years if the employer’s violation was willful.

Each day that passes without action is a day of potential back pay that may be lost. State laws sometimes provide longer deadlines, but waiting can still significantly reduce what you may be able to recover.

State Laws May Provide Additional Protections

Federal law establishes a floor, not a ceiling. Several states have enacted wage and hour laws that provide stronger protections than the FLSA. California, New York, Washington, Colorado, and others use a higher salary threshold for exempt classification and apply their own overtime rules.

Texas generally follows the federal minimum wage and overtime standards but allows claims to proceed under both state and federal law. If you worked in more than one state, you may have claims under the laws of each state where the work was performed.

What to Do If You Believe You Are Owed Overtime

Document your hours. Start a daily log of when you clock in and when you clock out, including any work performed before or after your scheduled shift.

Preserve your records. Save pay stubs, timesheets, schedules, and any written communications about your hours, duties, or compensation.

Keep written communications. Save emails, text messages, and other communications regarding your schedule, responsibilities, classification, and pay.

Consult a wage and hour attorney before the statute of limitations runs out. Many overtime cases, including those handled by Josephson Dunlap, are taken on a contingency-fee basis, meaning you generally pay no attorney’s fees unless a recovery is obtained.

A Salary Does Not Place Your Employer Above the Law

If you have been working long hours without additional pay, the protections of the FLSA may still apply to you, regardless of your title or how your compensation is structured. Whether any particular worker has a valid claim depends on the specific facts of the situation and applicable law.

If you have questions about your classification or believe you may be owed unpaid overtime, Josephson Dunlap, Lawyers for the Workers®, offers confidential case evaluations at no cost. Our firm has represented workers across the country in wage and hour matters.