Collecting Unpaid Overtime from Your Employer. Everyone would all like to believe that his employer behaves in an honest and equitable manner concerning paying him what he deserves for the hours that he works. Many laborers however are short changed by their employers, who try and avoid paying overtime when they actually deserve the extra pay. Some employers use the classification of the employee to try and avoid the higher wages required by overtime. Most often this occurs when the employer attempts to use an exempt classification for non-exempt employees, but it can also occur when an employer improperly categorizes an employee as an independent contractor. To instigate a claim for unpaid overtime you should first determine whether you actually have a valid claim. You can request a classification from your employer’s human resources department on your status as a non-exempt employee, however you should not assume that their classification is always correct. The Department of Labor can make a determination on your status as a non-exempt employee independent of your employer’s determination. Even signing an employment contract that states you are exempt from overtime or an independent contractor does not automatically mean that you aren’t entitled to overtime pay under the law. Protection under the Fair Labor Standards Act The Fair Labor Standards Act serves to protect you from unfair practices used by employers to pay you less than you should be paid for working over 40 hours per week. If you determine that you have overtime wages due for any period of time over the last two or three years you should consult an attorney to evaluate your case. A knowledgeable attorney can prepare your case; itemize the violations of the FSLA that your employer has committed, and present the case in court. If you win your case, the court will also require reasonable legal fees to be paid to your attorney as part of your settlement. If you choose to represent yourself in these matters, file your claim with the Department of Labor. Some states have more stringent labor laws and provisions for employees. You can alternately file your overtime claim with your state Office of Labor. These offices are in place to investigate and enforce violations of the state labor laws. Forms are available online at the respective agencies websites, or by contacting your local office in person. When you submit a form, you should include as much documentation as possible, including a detailed description of your job and duties, business records including timecards or invoices for services rendered, and any employment contracts or papers you may have signed. One critical matter that you should remember is that you can’t release your right to overtime by volunteering to work for free. Your employer is required to pay you for the hours that you work. Even an attempt on your employer’s part to get you to sign such a document may lead to other labor law violations. Department of Labor Hearings The Department of Labor serves as the administrative agency created by the Fair Labor Standards Act to protect worker’s rights. When you file a claim with the Department of Labor, the claim is adjudicated through this department instead of in a court of law. You usually have a limited period of time in which to file a claim. This statute of limitations differs by state, but generally ranges from between two and three years after the date of unpaid wages. You may be required to attend settlement conferences to try to work things out with your employer. A professional mediator from the Department of Labor will mediate these conferences. In some states, you must attend these conferences or forfeit your claim. You are not charged anything for these conferences and if you attempt in good faith to settle and do not reach an agreement, there is penalty against you. If you are unable to settle, the Department of Labor will schedule a hearing to be presided over by an administrative official. Both you and your employer can present evidences and subpoena witnesses for this hearing. The decision of the administrator is binding, although you can appeal to the relevant state Appellate court if you are dissatisfied with the decision. The court’s usually are deferential to the decision in the hearing, which means they will only overrule the administrator’s verdict if they did something wrong in making the decision, not if they simply would have reached a different outcome. Possible Results of a Successful Overtime Suit If you are successful in your unpaid overtime claim, you may receive back wages for the overtime you worked over the previous two or three years, depending on your state. If the court determines that your employer did not have a reasonable basis to believe that you were exempt from overtime, it may grant liquidated damages. These can amount to double the amount owed to you based on the suit. Can Your Employer Retaliate Against You If you believe that the company has retaliated against you for bringing a claim against them or threatening to bring a claim against them, you can file a discrimination or retaliation claim against your employer with the Labor Commission or file a claim in court against your employer. Finding Legal Help If you believe that your employer has illegally withheld overtime, you should contact this office at 908.757.4977 to have your potential claim evaluated. The classification of employees as exempt or non-exempt is confusing and the rules regarding claims and hearings for unpaid wages are complex. A representative from this office can help you determine how to file your case and can help you compile evidence to collect the money owed.