How to File an Unpaid Overtime Claim: Steps, Deadlines and Remedies

If your employer did not pay the overtime you earned, you have options: ask the employer to fix it, file a complaint with the Department of Labor or your state, or sue. This guide walks through the steps, the federal deadlines, what you can recover and how to protect yourself from retaliation.

Step 0: make sure you were actually underpaid

Before filing anything, confirm the shortfall. Overtime claims fail most often because the worker and the employer disagree about the hours, the workweek or whether the job is exempt. Total your actual hours for each workweek, compare them with the hours paid on your pay stubs, and check that you are covered and non-exempt. A job title or a salary does not decide the question; read exempt vs. non-exempt employees if you are salaried. If the shortfall comes from unpaid lunch deductions, rounding, training time or off-the-clock work, the related guides on unpaid lunch break rules, time clock rounding and what counts as hours worked explain what the law treats as paid time.

How far back can you go?

Under the Portal-to-Portal Act provision at 29 U.S.C. 255, an FLSA claim for unpaid minimum wages or overtime generally must be brought within two years after the violation occurred, or within three years if the violation was willful. Each payday is treated as a separate violation, so the clock runs from each underpaid paycheck rather than from the date you were hired. If you file in month 30 of a long-running problem, the earliest paychecks may already be outside the window. State law can give a longer period or additional claims, and some states allow more than the federal two or three years. Because time matters, do not wait for the employer to fix things voluntarily if the problem keeps recurring.

What you can recover

If a court finds that an employer violated the overtime or minimum wage rules, 29 U.S.C. 216(b) makes the employer liable for the unpaid wages and, in addition, an equal amount as liquidated damages. The court may also award reasonable attorney's fees and costs to a prevailing employee. Liquidated damages can be reduced if the employer proves it acted in good faith and had reasonable grounds to believe its conduct was lawful. Here is a simple example. An employee underpaid by 3 overtime hours a week at 1.5 × $18.00 = $27.00 an hour is owed 3 × $27.00 = $81.00 a week. Over 40 weeks, back wages total $3,240.00. With an equal amount in liquidated damages, the total claim is $6,480.00, before fees and costs. Use the Overtime Pay Calculator to estimate a week's overtime, and the Weekly Time Card Calculator to total hours.

Your records are the evidence

Employers must keep payroll records for at least three years and basic time and earnings records for at least two years under the Department of Labor's recordkeeping regulations (29 CFR Part 516). If the employer's records are missing or inaccurate, the Supreme Court's decision in Anderson v. Mt. Clemens Pottery shifted the burden in a way that lets an employee prove hours by reasonable inference, for example through their own notes. That is why a personal log is so valuable. Useful documents include:

• Pay stubs and direct deposit records; see how to read a pay stub if you need help finding the hours and overtime lines.
• Your offer letter, employment agreement, handbook and any pay or bonus plan.
• Schedules, emails, text messages and screenshots that show hours worked or instructions to work off the clock.
• Your own daily log of start time, end time, unpaid breaks and any calls or tasks after hours.
• Names of coworkers who can confirm the practice, and the manager who set the policy.

Step 1: ask the employer in writing

Many problems are payroll errors. A short written message that lists the dates, hours and the amount you believe is owed, and that asks the employer to review and correct the pay, creates a record and gives the employer a chance to fix the error. Keep it factual, keep a copy and avoid accusations. Raising a wage complaint with your employer, even orally, is generally protected from retaliation if it gives the employer fair notice that you are asserting a legal right, as the Supreme Court held in Kasten v. Saint-Gobain.

Step 2: file with the Department of Labor or your state

The Wage and Hour Division accepts complaints by phone, online and at local offices, and its contact information is listed at dol.gov/agencies/whd. You will generally be asked for the employer's name and address, your job and dates of employment, your pay rate and how you are paid, the hours you worked, and a description of what went wrong. The Division investigates, may interview employees and review records, and can seek back wages. The Division says it keeps the identity of complainants confidential to the extent possible. Your state labor agency may also accept the complaint under state law, and state procedures and deadlines may differ, so ask which agency is best for your situation. You generally cannot recover the same unpaid wages twice.

Step 3: private lawsuits and collective actions

You can also file a lawsuit in court without going through the Department of Labor, usually with an attorney. Many employment lawyers handle wage cases on a contingency or fee-shifting basis because the FLSA allows courts to award attorney's fees to employees who win. Under section 216(b), employees who are similarly situated can bring a collective action, but each employee must opt in by consenting in writing. Many employment agreements contain arbitration clauses, and the Supreme Court held in Epic Systems v. Lewis (2018) that agreements requiring individual arbitration of wage claims can be enforced, which affects where and how a claim is heard.

Retaliation is illegal

Section 15(a)(3) of the FLSA makes it unlawful to fire or otherwise discriminate against an employee for filing a complaint or participating in a proceeding under the Act. Remedies for retaliation can include reinstatement, lost wages and other damages. If your hours, shifts or treatment change suddenly after you complain, document the date and what changed, and report it. Retaliation is a separate violation from the unpaid wages.

Before you sign a settlement or release

Employers sometimes offer a payment in exchange for a signed release. Private waivers of FLSA claims are often scrutinized and may not be enforceable without approval from the Department of Labor or a court, depending on where you live. Do not sign a release until you understand what rights you give up, how the amount compares with your calculation and whether it covers all relevant years. An attorney or the Wage and Hour Division can help you evaluate an offer.

A simple checklist

1. Total your actual hours for each affected workweek and compare them with your pay stubs.
2. Calculate the unpaid amount, including overtime at the correct rate for each week.
3. Save pay stubs, policies, messages and your own log.
4. Send the employer a written request to correct the pay, and keep a copy.
5. File with the Wage and Hour Division or your state labor agency, or speak with an employment attorney.
6. Mind the two- or three-year deadlines, and document any retaliation.

This guide is for general informational purposes only and is not legal, tax, or financial advice. Labor laws vary by state and change over time. Confirm your specific situation with your employer, HR department, or the U.S. Department of Labor.