What to do about unpaid overtime?

UPDATED: May 31, 2012

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What to do about unpaid overtime?

I can’t complete my tasked work for my employer in 40 hours per week and need to work overtime to complete it. However, overtime is not permitted or paid to me. So can I base any sort of legal action against employer for unpaid wages or what I call as a “setup to fail” condition?

Asked on May 31, 2012 under Employment Labor Law, Wisconsin


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If you are eligible for overtime, you must be paid it IF you work more than 40 hours in a week--there are no exceptions. But if you are exempt from overtime, you may be made to work any number of hours without additional pay or overtime. All hourly employees are, with very limited industy-specific exceptions, eligible for overtime, so if you are an hourly employee who works more than 40 hours in a week, you must be paid overtime for the hours over 40.

Some salaried staff are eligible for overtime, too: they are eligible if their job duties do not meet one or more of the tests for being ineligible. You can find these tests at the U.S. Department of Labor website. The main tests for most employees are the executive (managerial), administrative, creative professional, and learned professional tests. If you are salaried and want to see if you could earn overtime, compare your job duties to these tests; if you don't qualify under them, you can get overtime. On the other hand, if you do meet one or more of these tests for being exempt from overtime, the employer does not need to pay you any extra compensation for working more than 40 hours in a week.

Note however that while an employer must pay all non-exempt employees overtime when they work more than 40 hours in a week, the employer can forbid employees from working more than 40 hours--the employer has complete control over how many hours you may or must work. It doesn't matter if the limitations the employer puts on you make your job impossible--employers are allowed to do that, and there is no legal claim for being "set-up to fail."

If you are eligible for overtime and have worked more than 40 hours during some weeks without being paid it, you would seem to have a claim for unpaid back overtime, and could either contact your state department of labor or bring a lawsuit on your own.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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