Will a Lawyer Take Your Wage or Overtime Case?

Find out what a lawyer will consider in evaluating your overtime or wage claim.

Under federal and state law, you are entitled to be paid for all work you perform. These laws set the minimum wage that an employer can pay, establish overtime pay rates for work over eight hours in a day and/or over 40 hours in a week, require employers to give meal and rest breaks, require employers to pay for accrued vacation time (if offered by the employer), and other standards. These laws are voluminous and complex, and there is often a tricky interplay between the state and the federal regulations that govern wage payment standards. An experienced employment lawyer can determine whether or not your employer has violated any of these laws.

For information about state wage and hour laws, see Wage and Hour Laws in Your State. For general information about overtime pay rights, see Overtime Pay: Your Rights as an Employee.

How a Lawyer Assesses a Wage and Hour Case

A lawyer needs to be able to calculate the unpaid wages you are due. This includes straight-time and overtime hours you worked, but for which you were not fully paid. So, if you worked overtime hours but were paid only straight-time wages, you are entitled to the overtime premium (half of your usual hourly rate). And, you may be entitled to pay for meal and rest breaks that your employer didn’t let you take. In order to calculate these losses, a lawyer will need certain things from you.

Documents and Information

You can make the lawyer’s job of evaluating your case much easier (and your initial consultation shorter) by gathering relevant documents and organizing information for the lawyer. The documents you need are:

  • pay stubs
  • records of hours worked (including overtime hours)
  • records of accrued vacation time
  • calendars or other logs showing missed breaks, and
  • employer policies on overtime, wages, and breaks.

The information to note is:

  • any other employees who were denied wages, and
  • names of supervisors or others with information about hours you worked.

Keep in mind that lost wages can include compensation for vested vacation time that you did not take (and were not paid for), pay for meal and rest breaks that you were denied, and any “off-the-clock” work that you may have performed. Be sure to bring documents that reflect these losses.


When evaluating a wage and hour case, a lawyer will consider what damages you could recover if you win. Lawsuits are expensive (even if a lawyer takes the case on a contingent fee basis, as discussed below). You and the lawyer will want to make sure it’s financially worthwhile to even file a case against your ex-employer. If your lost wages and/or overtime are low, you may want to consider other options.

You may be entitled to penalties for unpaid wages as well, and the lawyer will evaluate that possibility.

Avenues of Enforcement

You may be able to file a lawsuit against your employer for unpaid wages. You may also be able to file a claim for lost pay with your state’s labor department. Discuss with any lawyer you see the pros and cons of each of these options (some states may require that you file a state agency claim before filing a lawsuit, for example).

Filing a claim with a state agency may be a faster, cheaper way to get the wages you are owed. But, there may be greater damages available if you file a lawsuit. A lawyer can explain the different options to you.

Class Action

One possible type of action that lawyers bring in wage and hour disputes is a class or group action. Where a large number of employees of a single company have similar claims for lost pay, a class or group action may be an option for seeking recovery. A lawyer will discuss with you whether or not other employees have experienced losses similar to yours. Be prepared to discuss this aspect of your situation.

Class or group actions have many advantages, but are also very difficult to pursue. One advantage they have is that a lot of people who each have only modest damages can pool their losses to make it worthwhile to pursue an action in court against their employer.

Attorney Fees

Some state wage and hour laws require the employer to pay the employee’s attorney fees if the employee wins. It is also possible that a lawyer will offer to take your case on a contingent fee basis, which means the lawyer gets a percentage of any damages award recovered on your behalf (whether through agency action, litigation, or settlement). Other attorneys will ask for an hourly fee.

If your lawyer wants to be paid by the hour, you can limit the overall fee outlay by reaching an agreement with the lawyer for limited services. For example, if you just need a lawyer to guide you through the process of filing a claim for lost wages with your state labor department, you can limit the lawyer’s services to that task and keep the total hours to a manageable level.

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