Unpaid Overtime
Many employees are entitled to overtime pay when they work more than 40 hours in a workweek. But unpaid overtime remains one of the most common wage violations.
Sometimes the problem is obvious: an employee works overtime hours and receives no overtime premium at all. Other times, the issue is harder to detect. An employee may receive overtime pay, but at the wrong rate. Or the employer may fail to count all hours worked, causing overtime hours to disappear from the paycheck.
What Is Unpaid Overtime?
Unpaid overtime generally occurs when a non-exempt employee works more than 40 hours in a workweek but is not properly paid overtime.
Under federal wage law, overtime is generally paid at one-and-one-half times the employee’s regular rate of pay for hours worked over 40 in a workweek.
For example, if an employee works 45 hours in a week, the employee may be entitled to overtime pay for 5 overtime hours.
Common Examples of Unpaid Overtime
Unpaid overtime can happen in many different ways, including:
working more than 40 hours without overtime pay;
being paid straight time for overtime hours;
being paid a salary but still performing non-exempt work;
working before clocking in or after clocking out;
working through unpaid meal breaks;
having time rounded down;
having overtime calculated using the wrong rate;
receiving bonuses or commissions that are excluded from overtime calculations;
being misclassified as an independent contractor; or
being told overtime was not approved, even though the work was performed.
The details matter, but the basic issue is whether the employee was paid correctly for all hours worked.
“I Was Paid a Salary” Does Not Always Mean No Overtime
Many workers believe they are not entitled to overtime because they are paid a salary. That is not always true.
Some salaried employees are exempt from overtime. But others are misclassified and may still be entitled to overtime pay.
Job titles are not controlling. A worker may be called a manager, supervisor, coordinator, specialist, or administrator and still be entitled to overtime depending on the actual job duties.
Overtime Must Be Based on All Hours Worked
Overtime problems often arise when employers fail to count all compensable time.
Examples may include:
pre-shift preparation work;
putting on or taking off required gear;
opening or closing duties;
required meetings or training;
after-hours emails, calls, or messages;
interrupted meal breaks;
cleanup work after a shift; or
time spent completing required paperwork.
If this time causes the employee to work more than 40 hours in a week, it may result in unpaid overtime.
Overtime Must Be Paid at the Correct Rate
Some employees receive overtime pay, but the overtime rate is too low.
This can happen when an employer calculates overtime using only the employee’s base hourly rate while excluding other compensation that may need to be included.
Examples may include:
nondiscretionary bonuses;
commissions;
production incentives;
attendance bonuses;
shift differentials; or
other incentive pay.
When the overtime rate is too low, the employee may be underpaid even if the paycheck shows an overtime line item.
“Unauthorized” Overtime May Still Need To Be Paid
Employers may have policies requiring overtime to be approved in advance. Those policies may allow an employer to discipline employees for violating scheduling rules.
But if the employer knew or should have known that the employee performed the work, the time may still need to be paid.
An employer generally cannot avoid paying wages simply by saying the overtime was not authorized.
Small Overtime Violations Can Add Up
Unpaid overtime does not always involve large blocks of time.
Even small amounts of unpaid work can become meaningful over time.
For example:
15 unpaid minutes per day
5 days per week
over 1 year
can amount to more than 60 hours of unpaid time.
If the employee was already working 40 hours, that time may be overtime.
Common Warning Signs
Potential warning signs of unpaid overtime include:
working more than 40 hours without overtime pay;
being paid the same amount regardless of hours worked;
overtime being paid at the same rate as regular time;
paystubs showing fewer hours than actually worked;
being told not to record all time worked;
having meal breaks deducted even when work continued;
having time rounded down;
bonuses or commissions not reflected in overtime; or
being classified as exempt despite limited decision-making authority.
These issues often affect more than one employee in the same workplace.
Discuss Your Situation
Unpaid overtime can take many forms. It may involve missing hours, misclassification, off-the-clock work, automatic meal deductions, time rounding, or overtime calculated at the wrong rate.
If you believe you were not properly paid overtime, you may request a confidential review of your situation.
