Unpaid overtime: how far back you can claim
Overtime not paid is wages owed. Under the FLSA a claim reaches back two years from the filing, extended to three where the failure was wilful, meaning the employer knew or should have known the law. Liquidated damages equal to the unpaid amount are the default, so a successful claim commonly recovers twice what is owed, plus costs and fees.
Where the burden sits
An employer must keep accurate records of hours. Where the employer has no records at all, the employee may prove hours by just and reasonable inference, and the employer then has to rebut it with evidence. That is a low bar for a claimant and it is why informal notes carry real weight.
The common patterns
- Off-the-clock opening and closing, ten minutes each end of the day.
- Working through lunch while the system auto-deducts 30 minutes.
- Manager editing the timesheet down to the schedule.
- Answering email and calls at home as a requirement rather than a choice.
- Travel between sites in the day that is never entered.
How to build a claim
- Write down your actual start and end times daily, in one file you control.
- Keep the evidence with it: badge-in logs, system timestamps, sent email times, calendar entries, photos of the clock.
- Keep the pay stubs showing what was paid and the schedule showing what was expected.
- Total the unpaid hours weekly, not annually, because the workweek is the unit.
- Raise it in writing, then file with the state agency or the federal Wage and Hour Division, which take claims for free.
What not to do
Do not average weeks together to smooth the claim, and do not accept a bonus in place of the premium without checking the arithmetic. Comp time, paid time off in place of cash, is valid only on a prior agreement and at one and a half hours per overtime hour.