An unpaid overtime claim is a claim for wages an employer failed to pay for hours worked beyond 40 in a workweek. Under the federal Fair Labor Standards Act, non-exempt employees must be paid at least one and a half times their regular rate for those hours, and Virginia has its own wage laws that can add protections.
Blank Kim Injury Law reviews overtime and unpaid wage problems for workers across Northern Virginia, including restaurant and hotel staff, construction and landscaping crews, home care aides, security officers and delivery drivers. Many of the workers most often shorted on overtime are more comfortable in another language. Attorney Robert Kim speaks Korean, and our paralegal team speaks Spanish.
The basic overtime rule
The federal overtime rule is in 29 U.S.C. § 207. For employees it covers who are not exempt, every hour worked over 40 in a single workweek must be paid at no less than one and a half times the regular rate of pay.
A few points follow from the way the rule works:
- Overtime is counted by the workweek. An employer generally cannot average a 50-hour week with a 30-hour week to avoid paying overtime.
- The regular rate is not always just the hourly wage. Certain bonuses and other pay can change it.
- Hours worked include time the employer requires or allows, even if it was not scheduled or recorded.
- Being paid in cash, by the job or by the day does not by itself remove the right to overtime.
Virginia’s own wage laws, found in title 40.1 of the Virginia Code, have changed in recent years. We check whether state law gives you additional rights on top of the federal rule.
Common ways workers are shorted on overtime
- Off-the-clock work. Being told to clock out and keep working, to arrive early for setup, or to finish closing duties after punching out.
- Automatic meal deductions. A 30-minute break taken out of every shift even when you worked through it.
- Misclassification as an independent contractor. Being paid on a 1099 while the company sets your schedule, supplies your tools and controls how you work.
- Misclassification as exempt. Being called a manager or put on salary while spending the day doing the same work as hourly staff.
- Straight time for overtime. Paying the same hourly rate for every hour, or paying overtime hours in cash at a flat rate.
- Splitting hours across two paychecks or two company names to keep each under 40.
- Day rates and piece rates with no overtime added for long weeks.
Are you really exempt from overtime?
Employers often treat salaried workers as exempt without checking whether the job qualifies. Exemptions generally depend on the job’s actual duties and on how, and how much, the worker is paid. A title such as “assistant manager,” “supervisor” or “coordinator” is not enough on its own.
| Question | Why it matters |
|---|---|
| Are you paid a fixed salary, or by the hour, day or job? | Many exemptions require a salary; hourly and day-rate workers are often non-exempt |
| What do you actually spend most of your day doing? | Duties, not titles, drive most exemption decisions |
| Do you supervise other employees, and can you hire or fire? | Relevant to whether a management exemption may apply |
| Do you use independent judgment on significant matters? | Relevant to administrative and professional exemptions |
| Who controls your schedule, tools and methods? | Relevant to whether you are really an independent contractor |
Because the answers are fact-specific, we look at pay records, job descriptions and what you actually do before giving you a view.
Northern Virginia jobs where overtime problems are common
Overtime violations show up in every industry, but they cluster in work with long, irregular hours and cash or day-rate pay. In Northern Virginia we hear most often from:
- Restaurant kitchen and front-of-house staff in Annandale, Centreville, Fairfax and Tysons
- Construction, drywall, roofing and landscaping crews paid by the day or the job
- Home health aides and caregivers who travel between clients
- Security officers at office buildings, data centers and events
- Delivery and last-mile drivers, and warehouse workers on mandatory peak-season shifts
- Retail and hotel workers labeled as salaried managers
Long hours also go hand in hand with fatigue injuries. If you were hurt at work, see our page on Virginia workers’ compensation, and for injuries on job sites, construction accident claims.
Records that support an overtime claim
Employers are supposed to keep accurate time and pay records, but the records they keep are often the problem. Your own notes can fill the gaps:
- Keep every pay stub, direct deposit record and 1099 or W-2.
- Write down your start and end times each day, and breaks you did not get to take, in a personal notebook or phone app you control.
- Save schedules, group texts and messages that show when you were told to arrive or stay late.
- Note the names of coworkers who worked the same hours.
- Do not use a company phone or email account as the only place you keep these records.
Deadlines and retaliation
Wage claims are subject to deadlines, and each week that passes can put older unpaid overtime out of reach. The federal law sets a limit on how far back a claim can reach, with a longer period when the violation was willful, and Virginia’s wage statutes have their own time limits. If you think you are owed overtime, act sooner rather than later.
Federal and Virginia law also protect workers from retaliation for complaining about unpaid wages. If you were fired, demoted or had hours cut after raising overtime, tell us about that too. Some workers also choose to file with the U.S. Department of Labor’s Wage and Hour Division, and we can help you understand that option alongside a private claim.
How we help with unpaid overtime
- Free, confidential case review. Tell us about your job and pay by phone or through the form on this page. There is no obligation to hire us.
- Pay review. We compare your hours to what you were paid and check how you are classified.
- Demand or claim. When the numbers support it, we pursue the unpaid wages through the appropriate process.
You can talk with our team in English, Korean or Spanish, and you do not have to be a U.S. citizen to ask about wages you earned.
