What to do if your overtime or wages were not paid

1. Keep your own record of your hours

Write down the time you begin and end work every day, when you take meal and rest breaks, and the total hours you work. Keep all your pay stubs and any contract about your pay.

Your employer has to keep records too. For each nonexempt worker, federal law requires the hours worked each day and each workweek, the regular hourly rate, the overtime earnings of the workweek, every addition to or deduction from the wages and the total wages of each pay period. Payroll records must be kept for at least three years, and time cards and wage computations for two.

Sources: California Labor Commissioner (DLSE), How to file a wage claim; U.S. Department of Labor, Fact Sheet #21: Recordkeeping Requirements under the FLSA

2. Check the math

Enter the hours of each day in the time card or the overtime calculator and compare the result with your pay stub, line by line. Under the FLSA, a covered nonexempt employee is owed at least one and a half times the regular rate for every hour over 40 in the workweek; California also counts overtime by the day.

Look first at the hours and the rates on the stub: a missing day, overtime paid at the regular rate, or a long week averaged with a short one, which the FLSA does not allow, since each workweek stands alone.

Sources: U.S. Department of Labor, Fact Sheet #23: Overtime Pay Requirements of the FLSA

3. Ask your employer in writing

Putting it in writing gives you and your employer the same facts. Write to your employer or payroll: the pay period, the hours you worked, what you were paid and what you think is missing. Keep a copy and the date you sent it.

Asking about your pay is protected. The Wage and Hour Division lists inquiring about your pay or hours of work among the activities your employer cannot retaliate against, and the FLSA protects complaints whether they are made orally or in writing; most courts have ruled that complaints made to the employer are protected too.

Sources: Wage and Hour Division, Retaliation; U.S. Department of Labor, Fact Sheet #77A: Prohibiting Retaliation Under the FLSA

4. File a complaint with the Wage and Hour Division

Many investigations of the U.S. Department of Labor’s Wage and Hour Division (WHD) start from a worker’s complaint. To file a complaint, call 1-866-487-9243 (1-866-4-USWAGE), Monday to Friday from 8:00 a.m. to 4:30 p.m. local time, and you will be directed to the nearest WHD office. You can also send a question online or visit a local office.

Complaints are confidential: the name of the person who complained, the nature of the complaint and whether a complaint exists may not be disclosed.

Under the FLSA, the Department of Labor or the employee can recover the back wages and an equal amount in liquidated damages. An employee can also file a private lawsuit for the back wages, the same amount in liquidated damages, attorney’s fees and court costs.

Sources: Wage and Hour Division, How to file a complaint; Wage and Hour Division, Contact us; U.S. Department of Labor, Handy Reference Guide to the FLSA

5. In California: a wage claim with the Labor Commissioner

A California worker can file a wage claim with the Labor Commissioner’s Office (DLSE) online, or by email, by mail or in person at one of its offices. Have the name and address of the company or person you work for, your record of hours, your pay stubs and any contract.

After the claim is filed, a settlement conference between you and your employer is scheduled. If the claim is not resolved there, a hearing is scheduled so a hearing officer can review the evidence.

California’s labor laws protect all workers, regardless of immigration status.

Sources: California Labor Commissioner (DLSE), How to file a wage claim

Time limits: do not wait

Federal law: generally, a two-year statute of limitations applies to recovering back wages and liquidated damages under the FLSA, and three years when the violation was willful.

California: a wage claim must be filed within three years for minimum wage, overtime, unpaid meal and rest breaks, sick leave, illegal deductions from pay or unpaid reimbursements; within four years for a written contract; within two years for an oral promise to pay more than the minimum wage; and within one year for penalties for a bounced check or for not giving access to, or a copy of, payroll or personnel records.

Sources: U.S. Department of Labor, Handy Reference Guide to the FLSA; California Labor Commissioner (DLSE), How to file a wage claim

If your employer retaliates

Under the FLSA, an employer cannot fire you or take any other adverse action against you for asking about your pay, asserting your rights, filing a complaint or cooperating with a WHD investigation. The protection reaches all employees of an employer, and the remedies can include reinstatement, lost wages and an equal amount as liquidated damages. You can complain to the WHD or file a private lawsuit.

In California, a retaliation complaint to the Labor Commissioner must generally be filed within one year of the retaliatory act. You can file it online or in person at a district office; the Labor Commissioner’s number for retaliation complaints is 833-526-4636. Filing does not require proof of immigration status, a Social Security number or a photo ID.

Sources: Wage and Hour Division, Retaliation; U.S. Department of Labor, Fact Sheet #77A: Prohibiting Retaliation Under the FLSA; California Labor Commissioner (DLSE), How to file a retaliation complaint