Yes, you can sue your employer for unpaid overtime if you’re a non-exempt employee under the Fair Labor Standards Act, and a successful claim typically doubles the wages you’re owed and forces the employer to pay your attorney’s fees. The FLSA requires most employers to pay non-exempt workers at least one and a half times their regular hourly rate for every hour beyond 40 in a workweek.1Office of the Law Revision Counsel. 29 USC 207 – Maximum Hours You have two ways to pursue the money: file a complaint with the U.S. Department of Labor, or take the employer to court yourself.
First, Confirm You’re Actually Owed Overtime
Federal law starts from the assumption that you are entitled to overtime. Employers only escape that obligation if your job fits a specific exemption, and qualifying for one requires meeting both a salary test and a duties test.2Office of the Law Revision Counsel. 29 USC 213 – Exemptions
On the salary side, you must earn a guaranteed salary of at least $684 per week ($35,568 per year) to be classified as exempt. The Department of Labor tried to raise the threshold to $844 per week in 2024, but a federal court struck the rule down in November 2024 and reverted it to the 2019 level.3U.S. Department of Labor. Earnings Thresholds for the Executive, Administrative, and Professional Exemption From Minimum Wage and Overtime Protections Under the FLSA Anyone earning less is non-exempt no matter what their title is.
On the duties side, your actual day-to-day work has to fit an exemption category. Executives must primarily manage a business or department and direct at least two full-time employees.4U.S. Department of Labor. Fact Sheet 17B – Exemption for Executive Employees Under the Fair Labor Standards Act Administrative employees run or service the business and exercise genuine independent judgment on significant matters.5U.S. Department of Labor. Fact Sheet 17C – Exemption for Administrative Employees Under the Fair Labor Standards Act Professional exemptions cover roles that require advanced knowledge from extended education, like engineers, doctors, and attorneys.6U.S. Department of Labor. Fact Sheet 17A – Exemption for Executive, Administrative, Professional, Computer and Outside Sales Employees Under the Fair Labor Standards Act
Two situations trip people up. The first is misclassification as exempt: your employer labels the job “salaried-exempt” but your duties don’t match any actual exemption. A shift lead who stocks shelves most of the day and occasionally assigns tasks isn’t an executive, whatever the paperwork says. The second is misclassification as an independent contractor. Contractors have no right to overtime, so some employers pay workers on a 1099 when the relationship really looks like employment. Signing a contractor agreement, receiving a 1099, or working from home does not settle it. The Department of Labor uses an “economic reality” test that weighs control, permanence of the relationship, and whether you have a real chance to profit or lose money based on your own decisions.7U.S. Department of Labor. Fact Sheet 13 – Employment Relationship Under the Fair Labor Standards Act
Also count hours that never made it onto your timecard. The FLSA counts any time your employer “suffers or permits” you to work, including staying late, answering emails before a shift, or attending mandatory training.8U.S. Department of Labor. Fact Sheet 22 – Hours Worked Under the Fair Labor Standards Act Those hours belong in your total.
The Two Ways to Bring an Overtime Claim
Once you’re satisfied you’re owed money, you have two routes. Which one fits depends on the size of your claim, how many coworkers are affected, and how much control you want over the process.
File a Complaint With the Department of Labor
The Wage and Hour Division investigates overtime complaints at no cost, and you don’t need a lawyer to file. Call the WHD at 1-866-487-9243 or submit a complaint online.9U.S. Department of Labor. How to File a Complaint Your identity stays confidential. If investigators find a violation, the WHD can recover your back wages and may pursue liquidated damages on your behalf.
The tradeoff is control. The WHD sets its own priorities, and investigations take time. Once the Secretary of Labor files a lawsuit on your behalf, your right to bring your own private claim ends.10Office of the Law Revision Counsel. 29 USC 216 – Penalties
Sue Your Employer Directly
You can skip the administrative route and file a private lawsuit in federal or state court. This gives you control over strategy, timing, and any settlement. Because the FLSA requires losing employers to cover your legal costs, many employment attorneys take these cases on contingency.
If coworkers had the same problem, you can file a collective action on behalf of yourself and similarly situated employees. Unlike a class action where everyone is automatically included, an FLSA collective action requires each worker to opt in by filing written consent with the court.10Office of the Law Revision Counsel. 29 USC 216 – Penalties The statute of limitations keeps running for each person until they formally join, so moving quickly and getting others on board preserves more of everyone’s claim.
What You Can Recover
A successful FLSA claim produces three components of recovery.
- Back wages: the unpaid overtime, calculated at time and a half for every hour over 40 in each workweek during the recovery period.
- Liquidated damages: an additional amount equal to your back wages, which doubles your recovery. Liquidated damages are the default. The employer can avoid them only by convincing the court it acted in good faith and had reasonable grounds to believe its pay practices were legal, a high bar most non-payers struggle to clear.10Office of the Law Revision Counsel. 29 USC 216 – Penalties11Office of the Law Revision Counsel. 29 USC 260 – Liquidated Damages
- Attorney’s fees and court costs: the court must order the employer to pay your reasonable legal fees if you win. This is what makes it financially viable to bring a claim even when the individual dollar amounts look modest.10Office of the Law Revision Counsel. 29 USC 216 – Penalties
Put numbers on it. If your employer owes you $10,000 in unpaid overtime, the judgment with liquidated damages reaches $20,000 before attorney’s fees. In collective actions covering dozens or hundreds of employees, the totals climb quickly.
How Long You Have to File
The statute of limitations for an FLSA claim is two years from the date of each violation. If the employer’s failure to pay was willful, meaning the employer knew or showed reckless disregard for whether its practices broke the law, the window extends to three years.12Office of the Law Revision Counsel. 29 USC 255 – Statute of Limitations
Each missed overtime payment starts its own clock. If your employer shorted you every week for five years, you can’t recover the earliest years, but the more recent violations remain live. Every week you wait is a week of back pay you lose permanently.
Evidence to Start Gathering Now
Your case will turn on proving how many hours you worked and what you were paid. Collect what you can:
- Pay stubs and wage statements showing your rate of pay, recorded hours, and how overtime was calculated.
- Employer timecards and work logs, which can reveal shaved hours or shifts that don’t match your recollection.
- Your own records: a notebook, calendar, or phone app tracking start times, end times, and breaks. Courts give real weight to contemporaneous personal logs when employer records are missing or disputed.
- Your offer letter, employment contract, or any document describing your pay rate, duties, or overtime policy.
- Emails, texts, or chat messages where a supervisor told you to come in early, stay late, or work through lunch.
If your employer didn’t keep proper time records, that’s the employer’s problem. The FLSA puts the recordkeeping burden on the employer, and when those records are inadequate, courts let employees prove their hours through reasonable estimates and personal logs.
Your Employer Cannot Retaliate
The FLSA makes it illegal for an employer to fire you, cut your hours, demote you, or take any other adverse action because you filed a wage complaint, cooperated with an investigation, or even asked questions about your pay.13Office of the Law Revision Counsel. 29 USC 215 – Prohibited Acts The protection applies whether you contact the Department of Labor, raise the issue with a supervisor, or file a lawsuit.
Retaliation is treated as a separate violation with its own remedies. You can recover reinstatement, lost wages, and an additional equal amount in liquidated damages on top of whatever you recover on the underlying overtime claim.14U.S. Department of Labor. Fact Sheet 77A – Prohibiting Retaliation Under the Fair Labor Standards Act Employers who retaliate usually end up paying far more than the overtime would have cost them.
One detail people miss: you’re protected even if your overtime claim turns out to be wrong, as long as you filed it in good faith. The law protects the complaint itself, not just correct complaints.
Check Whether Your State Gives You More
The FLSA is a floor, not a ceiling. Several states, including Alaska, California, Colorado, and Nevada, require overtime based on daily hours worked, not just weekly totals. In California, you earn overtime after eight hours in a day and double time after twelve, even if your weekly total stays under 40. Some states set higher salary thresholds for the white-collar exemptions, so workers who are exempt federally may still be non-exempt under state law. Others provide longer filing deadlines or higher damage multipliers. Where state law is more generous, your employer must follow it, and an employment attorney in your state can identify which set of rules gives you the stronger claim.