Your employer must pay you at your regular rate of pay for all of the non-overtime hours you work. And, if you work overtime hours, your employer must pay you at the overtime premium rate. If you’re owed regular or overtime pay from your employer, you can recover the unpaid wages, interest on the unpaid amount, and, in some circumstances, penalties that the law requires the employer to pay.
Employers must pay all employees at least minimum wage (for limited exceptions, see Nolo’s article, When Must Employers Pay the Minimum Wage?). Employees must be paid at least the federal minimum wage, or the state or local minimum wage, if either one is higher than the federal minimum wage. Of course, if an employer and employee agree on a rate that is higher than the minimum wage (typically in an employment contract or offer letter), the employer must pay that rate.
When an employer fails to pay an employee the applicable minimum wage or the agreed wage for all hours worked, the employee has a legal claim for damages against the employer. To recover the unpaid wages, the employee can either bring a lawsuit in court or file an administrative claim with the state’s labor department.
If you work overtime hours, you are entitled to pay at a higher rate than your regular hourly wage. In most cases, the overtime rate is “time-and-a-half” (150% of your regular rate). Under federal law, an employee who works more than 40 hours in a workweek is entitled to overtime pay for those hours. (Some states have their own overtime laws that offer additional rights; to learn more, select your state from Nolo’s Wage and Hour Laws in Your State page.)
When your employer fails to pay the overtime premium, you may have a legal claim that you can pursue against the employer. For more information about overtime pay in general, see Overtime Pay: Your Rights as an Employee.
The amount of money you can recover in your wage claim or lawsuit against an employer is called “damages.” The damages you may win if you succeed in your action against your employer fall into a few different categories, which are described below. (For state-specific information, see our articles on how to calculate your wage claim by state.)
First, you will be entitled to your unpaid wages. An employee who is successful in a wage claim or lawsuit will be awarded the amount of wages that the employer failed to pay. This includes any overtime premium that was not paid. If your employer paid you regular wages for overtime hours, you will be awarded the difference between the regular wages you were paid and the overtime premium you should have been paid.
Second, you will be entitled to an award of interest on the unpaid wages at a rate set by law. State laws will set the interest rate for unpaid wages or overtime due under state law. Or, instead of interest, you may be able to recover a sum called “liquidated damages.” (Under federal wage laws, liquidated damages are money amounts set in advance by law, awarded to employees in lieu of interest). If your employer acted “willfully,” that is, not in good faith, it may have to pay double the unpaid wage amount due to you as liquidated damages under federal law.
Many state laws require employers to pay a penalty of some type in addition to the unpaid wages due. For example, California law requires an employer to pay a “waiting time” penalty equal to 30 days of the employee’s unpaid wages.
Your employer also has to pay your attorney’s fees if you win your wage or overtime case, along with the costs of pursuing the case.
It may seem straight-forward enough to sue your employer for unpaid wages. If your wage claim is simple and relatively small, you may be able to pursue the claim on your own by filing a complaint with your state’s labor department. But, if your case is large or complex, you may want to hire an attorney to represent you. If you’re unsure of the best route to take, you should talk to an employment lawyer who can assess your case and figure out the best way to recover what you are owed.