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Wage theft occurs when an employer fails to pay the full wages to its employees that they are legally owed – a pervasive problem that affects millions of employees in the U.S. Wage theft often takes the form of unpaid overtime, with companies denying or shortchanging workers on the time-and-a-half pay they should receive for working more than 40 hours in a week.Government and academic studies show that employers steal billions of dollars from workers' paychecks each year through wage theft. This includes the too-common practices of not paying overtime, paying below minimum wage, and making employees work off the clock.
A recent analysis from the Economic Policy Institute estimates that workers lose over $15 billion annually from wage violations in the U.S., with only a fraction of the stolen wages ever recovered. Beyond the harm to individual workers, wage theft also hurts families and communities affected by these financial losses. Its impact is also felt by law-abiding businesses who must compete with businesses that rely on wage theft to give them an unfair advantage over their competition.
This free guide is designed to help workers better understand their rights under the Fair Labor Standards Act (FLSA) and related state laws, especially when it comes to overtime pay. It breaks down the basics of who is entitled to overtime, explains common tactics employers use to to dodge overtime laws, and describes recent developments that every employee should know. Whether you're researching local laws because you suspect your employer is cheating you out of overtime, want to know when and how to get help from a lawyer, or are looking to understand how overtime laws work – this guide is for you.
Without a background in employment law in the U.S., the specifics can be difficult to understand. The laws impacting employees, companies, and overtime pay in the U.S. are complex, but the bottom line is simple: if you put in extra hours, you deserve to be paid fairly for every one of them. With the information provided in this guide, you will have the tools needed to recognize wage theft and better protect your hard-earned pay.
Under the Fair Labor Standards Act (FLSA), the federal law that sets minimum wage and overtime rules, most workers must be paid overtime when they work more than 40 hours in a single workweek. Overtime pay is required at one-and-a-half times, or "time and a half,” the regular rate of pay for every hour worked over 40 hours, each week.
Here is an example of these overtime payment rules in action:
The standard 40-hour workweek and time-and-a-half overtime rule has been U.S. law for decades. The intention of the federal law is to protect workers by discouraging excessive hours worked, while ensuring workers are compensated for long workweeks.
The most critical aspect of the law is that each work week stands alone. An employer cannot average an employee's hours over two or more weeks to avoid paying overtime. This is one of the most frequently misunderstood or intentionally ignored provisions of the FLSA, especially by employers who use bi-weekly or semi-monthly pay periods. The practice often results in wage theft that is hidden within an employer's payroll system.
For example, consider an employee who is paid bi-weekly and works 50 hours during the first week of the pay period. In the second week, they work 30 hours. The total for the bi-weekly pay period is 80 hours. An employer who pays this employee for 80 hours of straight time worked, claiming the hours "averaged out to 40 hours each week," is doing so illegally. The employer is in direct violation of the FLSA because the law requires each week to be treated separately. The correct payment for this employee would be:
Workers who are paid on a bi-weekly schedule and work a schedule of fluctuating hours should track their weekly work hours and carefully examine their pay stubs for this pattern of illegal averaging.
Overtime must be calculated on a weekly basis under the FLSA. Employers that calculate overtime pay by averaging it over two weeks are in violation of the law. This means that if an employee works 45 hours one week and 35 the next, they are owed 5 hours of overtime for the first week, even though the two-week average comes out to 40. An employer cannot avoid overtime by "balancing out” hours over multiple weeks, or by paying overtime only after 80 hours are accrued over two weeks. This is a common practice employers have attempted, which is clearly illegal under the FLSA.
Who is entitled to overtime pay? In general, most hourly-paid workers or "non-exempt” salaried employees are covered by the FLSA’s overtime rules. The term "non-exempt” means not exempt from overtime (i.e., the worker must be paid overtime wages when they work over 40 hours/week). This covers most workers in the private and public sectors across the country. Common jobs like retail associates, manual laborers, nurses, call center staff, restaurant servers, technicians, and many others are typically non-exempt workers. Workers who are paid by the hour almost always qualify for overtime pay when overtime hours are worked. Even salaried employees may be entitled to overtime, unless the job and salary meet specific exemption criteria. These exemptions will be covered in the next section. Salaried employees should not assume that they are not owed overtime due to their rank, title, or salary. Many employers mistakenly (or intentionally) misclassify workers as exempt when they should be accruing overtime wages.
Wage theft through unpaid overtime occurs in many ways. Some employers simply refuse to pay overtime at all, or only pay straight time for hours over 40. Other employers have been found to doctor timesheets or instruct workers not to record hours past 40. A pattern of class-action lawsuits and Department of Labor (DOL) investigations has exposed overtime violations at both major companies and small businesses. Workers in industries from healthcare to retail have recovered millions of dollars in back wages after being denied overtime pay.
If an individual regularly works more than 40 hours a week and does not see an overtime premium in their paycheck, their rights may be being violated by their employer. In short, most employees are required to be paid overtime when worked, meaning they have a legal right to receive time-and-a-half pay for extra hours worked. These overtime requirements apply nationwide, in every state, so long as the employer is covered by the FLSA. Businesses engaged in interstate commerce or with over $500,000 in annual sales are covered, which includes most medium and large-sized employers.
The FLSA carves out some exemptions to the overtime requirements for certain categories of employees. For example, an employee who is "exempt” does not have to be paid overtime, and in some cases, may not have to be paid minimum wage.The most well-known exemptions are for "white-collar” workers, including executive, administrative, and professional employees; as well as IT/computer professionals and outside salespeople.
These exemptions are meant to apply to higher-level positions with specific duties and salary levels. However, employers often misapply or abuse the exemptions to avoid paying overtime that is legally due. It's crucial for workers to know and understand the criteria that must be met for a legal overtime exemption or to get help from an employment law expert to make this determination.
To be exempt from overtime, an employee generally must satisfy all three of the following tests:
All three of these conditions must be met to lawfully classify someone as exempt. If an employer does not pay on a salary basis, pays a salary that is below the threshold, or if the employee’s duties don't fit within the narrow definition, overtime pay may be required by law – no matter what the employee’s title is. For instance, many assistant managers working in retail and food service have successfully recouped past wages after showing that they were given "manager” titles and salaries to deny overtime, while their actual work was mostly non-managerial. The courts have generally agreed with these workers, reclassifying them as non-exempt and awarding overtime back pay.
| Exemption Type | Salary Basis Test | Salary Level Test (as of 10/16/2025) | Primary Duties Test |
|---|---|---|---|
| Executive | Must be paid a fixed salary not subject to reduction based on quantity/quality of work. | Must be paid at least $684 per week ($35,568 per year). | Primary duty is management; directs the work of 2+ employees; has authority to hire/fire or recommendations are given "particular weight." |
| Administrative | Must be paid a fixed salary not subject to reduction based on quantity/quality of work. | Must be paid at least $684 per week ($35,568 per year). | Primary duty is office/non-manual work related to business operations; exercises discretion and independent judgment on significant matters. |
| Learned Professional | Must be paid a fixed salary or fee basis not subject to reduction. | Must be paid at least $684 per week ($35,568 per year). | Primary duty requires advanced knowledge in a field of science or learning acquired through prolonged specialized instruction. |
| Creative Professional | Must be paid a fixed salary or fee basis not subject to reduction. | Must be paid at least $684 per week ($35,568 per year). | Primary duty requires invention, imagination, originality, or talent in a recognized artistic or creative field. |
The federal salary minimum of $684 per week (or $35,568 annually) has been in place since 2020. Recognizing that this amount is low, barely above poverty level for a family, several states have raised the salary test for overtime exemptions. Workers living in these areas who earn less than the state's higher cutoff must be paid overtime, even if they qualify as exempt under federal law. As of 2025, six states have enacted a higher salary requirement for exempt status:
| State | Weekly Salary Threshold | Annual Salary Equivalent |
|---|---|---|
| Federal (FLSA) | $684 per week | $35,568 per year |
| Alaska | $952.80 per week | ~$49,546 per year |
| California | $1,320.00 per week | $68,640 per year |
| Colorado | $1,006.25 per week | ~$52,325 per year |
| Maine | $845.21 per week | ~$43,951 per year |
| New York (NYC area) | $1,237.50 per week | $64,350 per year |
| New York (rest of state) | $1,161.65 per week | ~$60,406 per year |
| Washington | $1,499.40 per week | ~$77,969 per year |
As the table shows, California and Washington require a much higher salary (around $68k and $78k, respectively) for overtime exemption consideration. Most employees living in these states who earn less are automatically overtime eligible, no matter what their job duties entail. The state-specific rules reflect a trend of providing greater worker protections at the state level. Employees should check their state's labor laws carefully, because they often provide more generous overtime rights than federal law, and cannot take away federal rights provided by the FLSA.
At the federal level, the Department of Labor has signaled additional plans to raise the salary threshold for exemptions in the future, which would bring even more workers under overtime protections when implemented. For example, in 2023 the DOL proposed increasing the salary cutoff to roughly $55,000 per year; however, legal challenges and changes in administrations have delayed or halted implementation.
Misclassification of employees as "exempt” is a common form of overtime wage theft. If an employer claims its employees are not entitled to overtime, it must be for a legitimate reason. A few niche exemptions, in addition to those listed above, include certain transportation workers, farmworkers, and others. Unfortunately, some employers also incorrectly think that paying a flat salary for all hours worked means overtime rules do not apply. This is simply not true. Employees who are salaried are not automatically exempt from overtime pay. The courts have shown that this works for job titles too. Being called a "supervisor” or "specialist” doesn't override federal overtime law if an employee is performing non-exempt work. In a legal dispute, the burden is on the employer to prove that an exemption applies. When in doubt, the default is that employees are non-exempt and entitled to overtime pay for hours worked over 40 per week.
Another way employers try to skirt overtime laws is by labeling workers as independent contractors instead of employees. FLSA overtime and minimum wage protections apply to "employees.” Independent contractors (i.e., self-employed individuals who are in business for themselves) are not covered by the FLSA. This means that a business does not have to pay contractors overtime or minimum wage. However, calling someone a contractor or having them sign a 1099 agreement does not automatically make them one in the eyes of the law. If a worker is effectively under the company's control and economically dependent on it, they should likely be treated as an employee and are owed the same protections, including overtime pay.
Misclassification of employees as independent contractors has become a major issue in many industries, from construction and trucking to the gig economy (e.g., rideshare drivers, delivery app workers, etc.). Companies may be doing it to save on labor costs and avoid employment laws, but it's most often illegal. You might be misclassified as a contractor if, for example, you work full-time for a company that directs your work hours, provides the equipment, and closely supervises you, but pays you via a 1099, without overtime or benefits.
By law, what matters is the actual relationship between employer and employee, not the label. Some factors that determine if you are truly an independent contractor or an employee include: the degree of control the company has over your work, whether you can make a profit or loss as an independent business, how permanent or exclusive your relationship is, and whether your work is integral to the company's business. If you are economically dependent on a single company for your livelihood, you are likely an employee.
Why does this matter for overtime? If you've been classified as a contractor, but you function like an employee, you may be missing out on significant overtime pay and other protections. For example, for years FedEx classified many of its delivery drivers as independent contractors, paying them a flat rate per delivery or per day with no overtime. These drivers averaged well over 40 hours a week. When faced with multiple lawsuits, the company settled and paid out millions of dollars in unpaid overtime to them. The courts found that those drivers were actually employees, because the company controlled their routes, schedules, and uniform, which are common indicators of an employee-employer relationship
Similarly, in the gig economy, companies like Uber and Lyft have faced numerous lawsuits from independently contracted drivers who argue that they are employees and entitled to overtime and other benefits. While the legal battles continue, states and courts have begun to side with “gig” workers on this issue. A general trend towards stricter scrutiny of contractor classifications is occurring.
In 2024, the DOL issued new guidance to clarify the test for independent contractor vs employee, aiming to crack down on misclassification, replacing a more lenient 2021 rule. The DOL has faced legal challenges on this new guidance, and as of 2025, the federal agency has paused enforcement of the new rule pending further review. In addition, some states (e.g., California’s "ABC test” and a proposed law in New York) are pushing for broader definitions of employment that would make it harder for companies to classify core workers as contractors.
The takeaway for workers is don't assume you have no rights just because you're called a contractor. If you think you've been misclassified by an employer, you may be owed overtime pay. Courts are looking for substance over form. Meaning, if you meet the criteria of an employee, you should be treated (and paid) as one. At its core, independent contractor misclassification is another form of wage theft, and it's worth consulting with an attorney or the DOL if you suspect it is occurring.(Visit our website to learn more about Independent Contractors and Overtime).
[Not sure if they are attempting to discuss salaried non-exempt workers along with day-rate workers in this section, but they seem to be mixing up FWW requirements with day rate pay situations.]
Another pay scheme that often leads to overtime disputes is the "day rate” or other flat-rate payment systems. In this instance, a day-rate worker is paid a set amount for each day worked, regardless of the number of hours worked that day. For example, an oil field technician who is paid $250 per day, whether they work 8 or 12 hours. Many employers mistakenly think that if someone is paid by-the-day, or by-the-project, overtime pay does not apply. However, day-rate employees are usually entitled to overtime pay, unless they fall under a specific exemption.
Under the FLSA, even if you are paid a flat sum per day, your employer cannot ignore overtime rules. There is a specific method for calculating overtime for day-rate workers. Essentially, their "regular rate” is determined by dividing the total pay in a workweek by the number of hours worked. The employee’s overtime pay is calculated at one-half the regular rate for each hour worked over 40. It is important to note that this method for calculating overtime cannot be used if the employer does not pay a full day’s pay no matter how many hours are worked for the day. If the employer adjusts the day rate amount based on hours worked, the employer must pay full time-and-a-half overtime, not the discounted half-time rate.
A recent notable case is Helix Energy Solutions v. Hewitt, a 2023 U.S. Supreme Court case. An oil rig "tool pusher” was earning over $200,000 a year on paper, with a day rate of about $963 per day. Despite the high pay, he often worked 84 hours a week with no overtime premiums accrued. His employer argued that he was a highly compensated exempt employee. The Supreme Court disagreed. He was paid by the day and not given a guaranteed weekly salary, which fails the salary basis test for overtime exemption. Being highly paid isn't enough to evade overtime, if the pay structure doesn't meet the legal salary basis requirements. A day-rate pay system does not satisfy the salary requirement for exemption, even for well-paid workers. This Supreme Court ruling put employers on notice that daily-rate workers are non-exempt, unless they also receive a guaranteed base salary that meets the threshold.
Day rates are common in the oil and gas industries, as well as construction, trucking, and certain IT/tech and installation jobs. If you're paid a flat amount per day or per job, you should be aware that you are likely to have the right to overtime pay beyond 40 hours per week. Even if your employer attempts to pay some overtime, they might be doing it incorrectly. For example, paying "half-time” for overtime hours, without meeting the strict conditions, is illegal.If your employer is not paying a proper day rate, you may be entitled to full time-and-a-half pay instead of half-time pay.
Many day-rate workers have successfully claimed back wages. Recent lawsuits have helped recover unpaid overtime for day-rate drillers, welders, cable installers, retail fixture installers, and consultants. If this situation sounds familiar, remember that one day-rate worker making six figures won his case for unpaid overtime at the Supreme Court level. The law is on your side, and overtime can't be waived or ignored simply due to a pay-by-day arrangement. (If you believe you're being shorted on overtime, learn more about Day Rate Overtime Laws on our website).
Even when employers pay a small amount of overtime, they may be miscalculating the legal overtime rate by not including all required forms of compensation. Under the FLSA, overtime must be paid at 1.5x the employee's "regular rate of pay.” Importantly, the regular rate is not always simply the base hourly wage. It must also include most bonuses, commissions, shift differentials, or other incentive pay earned. Only certain types of extra pay can be excluded (i.e., truly discretionary bonuses or gifts). If an employer gives you a production bonus, hazard pay, or a piece-rate, those earnings must be factored into your regular rate when determining an overtime premium. Failing to include them can result in significant underpayment of overtime, a common mistake (or manipulation) made by employers.
Here’s an example of it in action:
For the 10 overtime hours, the worker should get $25.50 each hour, not just $22.50 (1.5× the base wage alone).If the employer only paid overtime based on the $15 hourly rate, the employee is missing an additional $3 per overtime hour worked. These differences in overtime pay, which are legally owed to the impacted workers, can add up over many weeks.
Legal cases throughout the U.S. show how prevalent this issue really is. Even large, sophisticated companies can get it wrong. In 2024, Kraft Heinz agreed to a $15 million settlement to resolve claims that they hadn't included certain non-discretionary incentives and awards in employees' overtime pay calculations. In another case, a group of 231 nurses won a settlement of over $500,000 after alleging their hospital failed to incorporate incentive pay into their overtime rate. In Illinois, the state's Supreme Court ruled unequivocally that non-discretionary bonuses must be included when calculating overtime pay rates, affirming a lower court decision and putting Illinois employers on notice that shortchanging overtime by excluding bonuses is unlawful. These examples underscore a simple point: if you earn extra forms of pay beyond a base wage tied to your work, your overtime pay should reflect those extras. If not, you could be owed back pay.
Another tactic used by employers is paying certain forms of compensation as "per diem, stipends, or reimbursements,” while not including them in overtime calculations. While true expense reimbursements (i.e., travel expenses) can be legally excluded, problems arise when companies inflate the per diem or label part of wages as ‘reimbursements' to disguise true wages.
For example, a travel nurse could earn a $15 hourly base rate plus a "$500/week stipend” for housing and meals. If that stipend is part of their pay, it should count towards the regular rate when calculating overtime wages. Employers have been caught categorizing large portions of pay this way to keep the base wage rates low for overtime calculation purposes. The practice is often referred to as "disguised wages,” and it's illegal. The DOL and courts look at substance over labels. A clue to discovering this scheme is when everyone receives the same flat per diem, regardless of actual expenses. That can indicate that it is really a form of extra compensation. A recent collective action against a staffing agency alleged that workers' housing and meal stipends were part of their wages, and by excluding them the company was underpaying its overtime. The case settled for around $4.4 million. The lesson here is, if it looks] like wages, it's probably wages, and must be counted as part of the overtime calculations.
nother egregious scheme occurs when an employer lowers the hourly rate during overtime weeks to keep the total pay the same. AFor instance, a security company paid a guard $13/hour. When that guard started logging 60-hour weeks, the company cut the base rate to $11. That reduced the overtime pay rate so that the employee’s total pay for the week equalled around $13/hour (straight time pay only) for 60 hours worked. While an employer can change your rate going forward for legitimate business reasons, doing it to avoid overtime, or as a fluctuating scheme tied to hours, is illegal.
The U.S. Court of Appeals for the 11th Circuit addressed exactly this scenario in 2023. A security guard sued his employer, claiming the use of "prohibited arithmetic,” essentially adjusting his rate downward once he started working overtime, then raising it back when his hours dropped. The appeals court agreed that if true, the practice violated the FLSA as an attempt to circumvent overtime requirements. The case was sent back for trial, but the message was clear: employers cannot manipulate pay rates to nullify overtime pay (Source: HR Dive News). Watch your paychecks closely: If you notice your hourly wage or effective rate during weeks that overtime is earned, you may have a valid claim.In addition, some states have imposed even stricter rules on overtime pay calculations. For example, Colorado now requires that holiday incentive pay be included in the regular rate for overtime. In a 2024 decision (Hamilton v. Amazon.com Services), the Colorado Supreme Court held that under current state wage law, a bonus paid for working a holiday must be factored into overtime pay if that holiday fell in the same week as the overtime hours. This differs from federal law, which might consider a true holiday bonus as excludable if it's a one-off discretionary reward. In this case, the state law provides greater protection, with time-and-a-half computed on a higher base for those who receive premium pay for holidays worked. It’s important to know your jurisdiction's rules, but whenever you receive extra pay tied to your work or hours, it's safe to assume that it should boost your overtime rate.
Here’s what’s most important to remember. Calculating overtime correctly requires more than just 0.5x the hourly rate. It requires the employer to first get the "regular rate” current. If your employer isn't including things like production bonuses, attendance bonuses, piece rates, shift differentials, or other non-discretionary payments in the regular rate before calculating overtime, they're effectively underpaying every overtime hour worked. That can turn into a substantial loss for workers over weeks, months, and years.
Understanding the specific rules and complex situations is difficult, so don't hesitate to ask a qualified attorney or your state's labor agency if you suspect you're not getting the full overtime you earned. Workers have successfully recovered unpaid wages in many scenarios like these, and the law often provides for "liquidated damages,” doubling of the unpaid amount for willful violation of the law. Precision in payroll is the employer's responsibility, and shortcuts that save them money at the expense of their employees, are unlawful.
Not all overtime violations are immediately obvious on a paycheck. Some occur because employees are expected to do work "off the clock” (i.e., work time that isn't recorded or paid). Other violations involve breaks or meal periods that are unpaid, when legally they should be paid. These practices can cheat workers out of overtime pay (and regular wages) without the employee realizing it.
Under the FLSA, any work you perform for your employer's benefit counts as hours worked. This includes coming in 15 minutes early to boot up your computer, log into the system, or put on safety gear before your shift officially starts. It also includes finishing up closing duties, cleaning up, attending a debrief, or undergoing a security check while not on the clock. These kinds of off-the-clock duties are widespread. It doesn't matter if it's not part of your "scheduled shift”, if the employer requires it (explicitly or implicitly), that time is compensable.
For example, call center employees have successfully sued companies that required them to be at their desks logged into the software system by the start of the shift, effectively requiring pre-shift, unpaid work time first. Major retailers like Amazon have reached settlements for not paying warehouse workers for time spent on mandatory security screenings after their shifts. This 10-115 minutes a day or more pushed some workers into overtime. Even seemingly small things like putting on and taking off required uniforms or protective equipment, known legally as "donning and doffing, ” can amount to significant unpaid time worked. In industries like food processing, manufacturing, and healthcare, employees spend time before and after shifts putting on safety gear (e.g., steel-toe boots, hard hats, goggles, gowns, etc.). Courts have often ruled that if the gear is integral and necessary for the job, this time must be paid.
Some employers argue that a few minutes here or there is "de minimis”, too trivial to count. While historically some courts have allowed disregarding very tiny increments of time, that concept has limits. The DOL generally expects that if you can reasonably capture the time, you should. Notably, some states do not allow any de minimis non-payment at all. For instance, California law requires paying for every minute of work and other states have also rejected the de minimis excuse in various contexts (e.g., Pennsylvania, New Mexico, Maryland, Colorado, and Arizona). If you regularly spend 10 minutes each day on unpaid tasks, that adds up to 50 minutes a week. Over a year, that totals 43 hours of unpaid work, which is far from trivial. If it pushes your total work time over 40 in a week, you're also missing out on overtime pay.
Federal law does not require employers to give meal breaks (although many state laws do). However, if an employer chooses to provide a meal break (usually 30 minutes to an hour) and it is unpaid time, then employees must be fully relieved of duty during that time period. If employees are required to keep working during that time, even intermittently, then the meal period cannot be unpaid. It becomes a paid time period in the eyes of the law. For example, numerous lawsuits have come as a result of nurses and other healthcare workers being required to attend patients during a 30-minute lunch break when that “break” period is deducted from their work hours.
Employers that use automatic time deductions for daily meal breaks are not in compliance with federal law, if those employees are required to work through that time. Whether it’s to meet deadlines, cover for staff shortages, or something else, those employees must be paid for the time worked. Class action lawsuits have resulted in hundreds of thousands of dollars in unpaid wages in cases like these. If your own workplace automatically deducts break times, make sure that there is a system to report when you could not take that break, so you will be paid for required time worked. If there isn't, your employer’s timekeeping practices may be unlawful.
Some states also mandate paid rest breaks. For instance, Colorado requires a 10-minute paid rest break for every four hours worked. If an employer in Colorado (or a state with similar rules) fails to provide those breaks, requiring employees to work straight through, they could potentially be incurring unpaid time or overtime. In late 2024, a fast-food franchise in Colorado agreed to a $4 million settlement for not providing required meal and rest breaks to its workers. As this shows, the cost of ignoring these and similar laws can be high.
In addition to these legal mandates, the FLSA says short breaks (typically 20 minutes or less) are considered working time and should be paid. Under this requirement, a quick 10-minute coffee break is by default paid work time under federal law. Only full meal periods (usually 30 or more minutes), where no work is performed, should be considered unpaid. Therefore, if a company docks you for two 15-minute rest breaks per day, those hours should be paid. If not, the employer is in violation of federal law. When those unpaid rest breaks would have put employees over 40 hours for the week, the employer may be violating overtime rules as well.
When employees are required to attend daily meetings before or after a shift, that time should be considered work time. If it occurs before or after employees have clocked in or out for the day, the employer may be breaking the law. Similarly, any mandatory training sessions that are held outside of normal work hours usually must be paid. A recent court case emphasized this requirement. A group of employees was required to report early and stay late for training, and the court found that this counted as compensable time. The bottom line is, any time you are under your employer's control or required to be on duty, is work time. If you have a 15-minute huddle every day before the store opens, or you're expected to prepare equipment on your own time, those minutes should always be on the clock.
Another notable area of litigation covers whether specific post-shift activities, including security screenings (e.g., theft prevention/anti-theft checks in retail and warehousing) should be paid. A few years ago, in a case involving Amazon warehouses, the U.S. Supreme Court said that under federal law time spent solely waiting for or undergoing anti-theft screenings after a shift is not compensable. The Court deemed this time as not integral to the job's principal activities. However, this refers to federal law. Many states disagree. For example, a Pennsylvania court ruled that warehouse workers must be paid for security check time under its broader state laws.
Travel and commuting time can also be complex. While daily commuting time is not paid under federal law, travel between job sites during the workday is. In addition, if you are required to travel out of town for a work assignment, travel time that cuts across your normal working hours (including weekends) is counted as hours worked. In 2023, the Seventh Circuit court confirmed that for employees on remote assignments, travel during normal working hours is compensable. This means that if you normally work 9 to 5, and you travel on a Sunday from 1 to 5 for work, those four hours count as paid time.
A separate case in the Third Circuit court, covering some East Coast states, found a home healthcare company violated the FLSA by not paying workers for time spent driving between patients' homes during the day. They were also in violation for unlawfully calculating overtime over 80 hours (biweekly), instead of the required 40-hour weekly basis. In addition, the company failed to pay for some short breaks under 20 minutes. Cases like these reinforce that travel during work hours as part of your job and short rest breaks during the same time period, should be paid. If you have a job that requires moving around to different sites or clients during the day, that driving time should be on the clock. Additional violations come when underpayment pushes employees under the minimum wage requirements or into overtime hours.
It is important to note that work time is work time, no matter when or where it happens. Employers benefit from this labor, so they must pay for it. If you suspect that you're completing work tasks off the clock (i.e., answering emails from home at night, or cleaning up after you've clocked out), keep your own record of that time. While it may be a small daily amount, it adds up over weeks and months to hours of unpaid labor and could require pay at overtime rates. Wage theft often goes uncovered because it’s hidden, especially by automated timekeeping practices. When time worked goes unrecorded, it can be hard to identify and rectify – but the practice is just as unlawful as not paying overtime pay correctly.
Both the DOL and private attorneys have helped recover thousands of dollars in back pay for workers in off-the-clock claims in recent years. Don't let terms like "de minimis” or "that's just part of the job” dissuade you from uncovering this crime. If you're working, it should count as paid work time. (For additional examples of wage and time sharing violations, or if you believe your employer isn't paying for all your time visit our website on Off-the-Clock Wage Violations).
Receiving overtime pay for time worked can be a game-changer for workers who put in long hours. It not only rewards employees for time worked, it also discourages employers from overworking staff without compensation. Federal and state laws are designed to protect workers. But they only work if workers know their rights and stand up when those rights are violated. The best way to uncover wage theft and overtime violations is to know the red flags and understand what to do if you suspect your rights have been violated.
If any of the above sounds familiar to you, it may be time to dig deeper. Start by reviewing your own records if possible. All workers should keep copies of their schedule, pay stubs, and communications about pay. It can also help to talk to trusted coworkers. If it happens to you, it's likely happening to others too, and group complaints often carry more weight.
In addition, states continue to expand overtime rights. Pennsylvania and California recently raised salary thresholds, while Colorado added unique requirements and other states are ensuring farmworkers and domestic workers get overtime pay, when historically they were exempt. The DOL website is a good place to check for updates on overtime rules periodically, as well as your state’s labor department website. If you work in a sector that has been impacted by recent high-profile cases (e.g., home care, trucking, tech startups, etc.), it’s even more important to pay attention to industry news and rules changes.
The FLSA was passed over 80 years ago to combat exploitative labor practices. It remains a vital protection for workers today. Every worker deserves to be paid fairly for their labor. Overtime is not a privilege or bonus. It's the law. Unfortunately, many employers, whether through ignorance or intention, fail to comply. Wage theft in the form of unpaid overtime often steals time and money from those who often can least afford it. But workers have the tools to combat it, including: better understanding the law, reaching out to state and federal agencies for help, and legal recourse through the courts. If you believe that you've been a victim of overtime violations or any kind of wage theft, take action today.
Don't let wage theft go unchecked. The Lore Law Firm is dedicated to helping workers facing situations like these across the country. We offer a free case review to evaluate overtime and wage claims and an Overtime Pay Calculator tool to help you get a sense of what you might be owed. You have rights, and standing up for them not only helps you recover your own earnings, it helps to enforce better practices for all workers. Stay informed, keep good records, and never hesitate to assert your rights under the FLSA and state laws. Your paycheck should reflect your hard work, and with these protections in place, you can make sure that it does.
It all starts with a free and confidential case review. A personal case manager will quickly identify if you have a valid claim. If they determine it’s valid, you can rest easy knowing that you won’t pay us a dime unless we recover compensation for you. Our contingency basis is meant to incentivize victims to pursue legal action without financial concerns. Contact us now to learn how our unpaid wages lawyer can help.
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