Unpaid Overtime and Wage Claims for Hourly Workers:
What the Law Requires and How Some Could Be Missing Pay
Federal law sets clear rules for how hourly workers must be paid. When employers don't follow them, the difference comes out of your paycheck. Josephson Dunlap handles these cases nationwide at no cost to find out where you stand.
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Quick Facts About Hourly Workers
Hourly workers are protected by federal and state law. Understanding these protections is the first step toward recovering the unpaid wages you are owed.
If you feel like you're working more than you're being paid for, you're probably right. Employers often use carefully designed systems to make wage theft look like standard company policy. From 'pre-approval' rules to fake job titles, these tactics are designed to make you believe you aren't eligible for overtime. Our legal team is here to help you understand the most common unpaid overtime violations.
The Right Overtime Rate
Hourly workers are entitled to overtime at 1.5 times their regular rate for every hour worked past 40 in a workweek.
Additional Pay
Bonuses, commissions, and certain other pay must be included when calculating the overtime rate, not just the base hourly wage.
Common Ways Hourly Workers Lose Out On Money
Off-the-clock work, time shaving, and misclassification are among the most common ways hourly workers are underpaid.
Statute of Limitations
The lookback period for unpaid overtime claims is generally two years under federal law, three years if the violation was willful.
How We Help Workers Like You
Josephson Dunlap has recovered wages for hourly workers across retail, hospitality, healthcare, manufacturing, construction, and dozens of other industries.
Your Rights As An Hourly Worker
Hourly workers are protected by the Fair Labor Standards Act and, in many states, additional state wage laws. These laws set minimum standards for how you must be paid. Your employer cannot opt out of them, and you cannot waive them.
The core protections are straightforward. Your employer must pay you for every hour you work including time spent before, or after your scheduled shift if it is required for the job. They must pay at least the applicable minimum wage. And they must pay overtime at one and a half times your regular rate for every hour you work past 40 in a workweek.
Those rules apply regardless of your job title, the industry you work in, or how your employer classifies you. If the work you do makes you an employee under federal law, the protections apply.
How Overtime Is Calculated for Hourly Workers
For most hourly workers, overtime is calculated by multiplying the regular hourly rate by 1.5. But the regular rate is not always just the base wage, or the number that is on the contract, and that is where many employers get it wrong.
Under federal law, the regular rate must include most forms of additional compensation paid during the same workweek. That includes non-discretionary bonuses, shift differentials, and certain other payments. When an employer calculates overtime using only the base hourly rate and leaves those additional payments out, the overtime rate is too low and the worker is underpaid on every overtime hour in that pay period.
Example 1
Here is an example of how an hourly worker could be missing out on their full pay due to straight time:
This is the most common violation. The employer pays the same hourly rate for all hours, including overtime.
- You earn $22/hour and work 55 hours in a week
- Your employer pays $22 × 55 = $1,210
Here is what they actually owed:
- Step 1: Regular hours - $22 × 40 = $880
- Step 2: Overtime rate - $22 × 1.5 = $33/hour
- Step 3: Overtime pay - $33 × 15 overtime hours = $495
- Step 4: Correct total - $880 + $495 = $1,375
That is $165 that you're missing - for a single week. Over six months of regular overtime, that means you could be owed up to $4,290.
Example 2
Here is an example of how an hourly worker could be mssing on their full pay due to missed bonuses and additional pay:
This one catches most workers off guard. When your employer pays you a production bonus, attendance bonus, or any other non-discretionary bonus, federal law requires that bonus to be factored into your regular rate before overtime is calculated.
- You earn $22/hour, work 50 hours, and receive a $200 production bonus
- Your employer calculates overtime using only the $22 base rate
Here is what they should have done:
- Step 1: Total straight-time earnings - $22 × 50 = $1,100
- Step 2: Add the bonus - $1,100 + $200 = $1,300
- Step 3: True regular rate - $1,300 ÷ 50 hours = $26/hour
- Step 4: Half-time premium owed - $26 ÷ 2 = $13 per overtime hour
- Step 5: Overtime premium - 10 hours × $13 = $130 additional owed
Your employer paid overtime based on $22, however based on the law, it should have been $26. Not to mention, the $130 gap, repeated every week you worked overtime and received a bonus, adds up to thousands of dollars over the course of a year.
What This Means In Real Life
Most workers assume their job is doing this right. They see a paycheck, they see overtime listed, and they move on. But when the regular rate is wrong even by a few dollars, and the error repeats every single overtime week, sometimes for years, a worker could be looking at tens of thousands of dollars in underpaid wages. You already worked for that money, you already earned it. They just never paid it to you.
Types of Unpaid Wage Claims We Handle
We handle the full spectrum of wage and hour violations under federal and state law, with particular expertise in:
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Employee Misclassification
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Expense Reimbursement
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Untimely Wage Payment
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Meal and Rest Break Violations
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Employer Tip Theft
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Minimum Wage Violations
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Off-the-clock Work
Common Ways Hourly Workers Are Underpaid
Wage theft does not always look obvious. Employers use a variety of tactics, whether on purpose or not, to avoid paying hourly workers what they are owed. Here are the most common violations our unpaid overtime lawyers handle:
- Unpaid Overtime: This is the most common issue. Employers may miscalculate the overtime rate, exclude hours from the weekly total, or pay straight time instead of time-and-a-half for hours past 40. If you regularly work more than 40 hours a week and are not receiving the correct overtime rate, you may have a claim.
- Off-the-Clock Work: Any time your employer requires or allows you to work without recording or paying for those hours, that is a violation. This includes pre-shift setup, post-shift cleanup, required trainings, and responding to work messages outside of scheduled hours. These hours count and must be paid.
- Time Shaving: Some employers round down time records or edit timesheets to reduce the hours on record. Even small amounts add up significantly over weeks and months.
- Employee Misclassification: Some employers label hourly workers as independent contractors or as exempt salaried employees to avoid paying overtime. The label does not determine the legal outcome, the actual working relationship does. If your schedule, tools, and work are controlled by the employer, you may be legally entitled to overtime regardless of how you were classified.
- Minimum Wage Violations: Federal law sets a minimum wage of $7.25 per hour, but many states and cities have set higher rates. For tipped workers, employers must ensure that tips plus the base wage meet the applicable minimum. If they do not, the employer must make up the difference.
How Bonuses Affect Your Overtime Rate
This is one of the most frequently mishandled areas of hourly worker pay, and most workers never know it's happening.
When your employer pays you a non-discretionary bonus meaning a bonus tied to a specific goal, metric, or promise federal law requires that bonus to be included in your regular rate of pay before overtime is calculated. A non-discretionary bonus is one that was promised in advance or tied to a measurable target, such as a production bonus, attendance bonus, or quality bonus.
If you received any of these types of bonuses during a week when you also worked overtime, and your employer did not adjust your overtime rate to include them, your overtime was likely calculated incorrectly. The underpayment may be small in any given week, but across months or years it can add up to a significant amount.
This issue affects hourly workers across nearly every industry. It is also one that most workers and some employers are unaware of.
MICHAEL JOSEPHSON
ANDREW DUNLAP
RICHARD SCHREIBER
OLIVIA BEALE
ALYSSA WHITE
JULIA CLINE
SCOTT STOTTLEMYRE
Unpaid overtime Lawyers Fighting for Workers Nationwide
With more than two decades of experience, our unpaid wage attorneys have helped workers throughout the U.S. stand up to employers who would seek to cheat them out of fair wages.
Josephson Dunlap handles unpaid wage and overtime cases for workers across every pay structure, including:
We handle claims involving a wide range of violations, including:
- Employee Misclassification
- Meal & Rest Break Violations
- Delayed or Untimely Wages
- Off-the-Clock Work
Josephson Dunlap handles these cases exclusively. That focus means we know this area of law in detail and have the staff and resources to pursue claims of any size. Whether its an individual worker or a nationwide class action, we have the expertise to recover what is rightfully owed. We have helped more than 100,000 workers recover wages across all 50 states.
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Frequently Asked Questions About Unpaid Overtime
Any hour worked past 40 in a single workweek must be paid at one and a half times your regular rate. The workweek is a fixed seven-day period set by your employer. Hours do not carry over between workweeks and the workweek cannot change from to week to week in order to avoid paying workers overtime.
No. Federal law requires time-and-a-half for hours past 40. Paying a flat rate for all hours, including overtime hours, is a violation. The difference between what you received and what you should have received may be recoverable.
No. Federal law prohibits employers from retaliating against workers who file wage claims or participate in related proceedings. If an employer retaliates, by cutting hours, changing your schedule, or terminating your employment, that is a separate violation with its own consequences.
Waivers of FLSA rights are generally not enforceable. You cannot legally sign away your right to overtime pay. Arbitration agreements may affect how a claim is filed, but they do not eliminate your right to recover unpaid wages. An attorney can review your specific agreement and explain your options.
The review is free. Josephson Dunlap doesn't ask anyone to pay out of pocket to find out if they could be owed for their overtime. Anything you discuss with our legal team is confidential, and there's no obligation to do anything.
It may. Certain bonuses must be factored into your regular rate before overtime is calculated. If your employer paid you a bonus during a week when you worked overtime but did not adjust your overtime rate, your overtime may have been underpaid for that period.
What Our Clients Are Saying
My experience with Josephson Dunlap was great. The team took on my lost wage case and not only represented me but also advocated for me {...} I highly and strongly recommend this firm thanks again to the team.
They were great and very easy to work with. Accommodated with my work schedule even when my schedule changed, no problem. They made the process so easy and we came out with a great outcome!
I emailed in with a question and received an immediate response from a supervisor.... On a Saturday! Yvonne was so courteous and helpful and followed up on my issue after the weekend. I truly appreciated the customer service that was provided!
The entire staff has been great handling the case from start to finish. They have kept me notified of changes and announcements along the way. Would recommend using them if you find yourself needing legal guidance
I'd like to give my appreciation and gratitude to Josephson Dunlap Law Firm. {...} Thank you for all that your law firm does for the labors of America. I would have never known about my unpaid time if it wasn't for Josephson Dunlap Law Firm and Samantha Avila.
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