Unpaid Wages and Overtime
The Fair Labor Standards Act
According to the Fair Labor Standards Act of 1938 (FLSA), there
are only two types of employees: 1) those exempt from the FLSA’s
mandate to receive overtime wages; and, 2) those not exempt from
overtime wages. If you work more than 40 hours in one week, you
may be entitled to overtime pay. Ms. DeBrota handles many unpaid
overtime claims and can help you determine whether or not you are
a non-exempt employee and help you recover the wages that your employer
may owe you. Complete one of our free initial
case review or consultation forms to determine if you are owed
Under the FLSA, an exempt employee is anyone who is both paid
on salary and performs the duties of an exempt employee. Most exempt
duties fall under three different job categories: Executive, Professional,
If you regularly supervise two or more full-time employees and
you are “in charge” of a unit or sub-unit of the employer,
you may be classified as an Executive and be exempt from earning
overtime. The specific details of your job will determine if you
are an Executive or if you qualify for one of the several exceptions
to this general rule. Some examples are:
- If you are an “assistant manager” and your manager
is always present, even though you supervise two or more employees,
you may be entitled to overtime pay because your manager is ultimately
responsible for management.
- If you are a “line manager” or other similar title
that does not grant you supervisory or managerial authority, then
you may not be exempt from overtime pay.
- If you spend most of your time performing the same work as
the employees you supervise, you may be entitle to overtime pay,
even if you have some managerial responsibilities.
- If you do not supervise two or more full-time employees, but
you supervise multiple part-time employees, you may be exempted
from overtime pay if you supervise 80 hours of employee time or
more in one week.
If your job requires you to use advanced, typically highly-specialized,
training or education, you may be exempt from overtime wages. Such
professions include doctors, engineers, teachers, accountants, and
However, these are not the only professions exempted. If your work
requires you to regularly make decisions using good judgment, discretion,
and your highly-advanced training, you may be exempt from earning
If you perform office work that supports the business and requires
you to make business decisions, you may fall under the administrative
category of an exempt employee. Payroll administrators are a good
example of an exempt employee, whereas a secretary or receptionist
would not be exempt from earning overtime pay. But, secretaries
and receptionists typically do not exercise judgment to make decisions
which affect the business.
The key to determining whether you fall into this category is whether
or not you make decisions which effect the overall operation of
the business and not just a single executive or professional. Other
examples of employees who may be exempt are Director of Human Resources,
Corporate Buyer, and Bookkeeper.
Other Exempt Employees
If you work for your family in agricultural production, you are
not entitled to overtime pay. (You might not be entitled to minimum
wage pay, either.) If you perform work for a labor organization
and are not employed by that labor organization (for instance, picketing
for your union during a strike) you are not entitled to overtime
wages. However, if you are employed by the labor organization, such
as an agent or administrative assistant, then you may be non-exempt
and entitled to overtime wages.
If you do not fit any of the categories listed in the “Exempt
Employees” section, you may be entitled to overtime wages.
Generally, if you work more than 40 hours in one week, each hour
over 40 should be paid as “time-and-one-half.” For instance,
if you make $8 per hour, you should make $12 per hour, after your
regular 40 hours of work in one week.
Hourly employees are not the only ones who are entitled to overtime
wages. If you are a salaried employee that does not perform “exempt”
duties then you, too, may be entitled to overtime wages. However,
the amount of overtime pay to which you are entitled may be calculated
differently, using “base pay” and half-time pay, depending
upon the circumstances.
If you believe your employer has wrongly denied you overtime
pay, you may be able to recover double the unpaid overtime, plus
attorney fees and costs. However, the statute of limitations, or
time limit for you to act, could affect your chances to recover
unpaid overtime, if you do not file a complaint within the allowed
timeframe. If you believe you are owed overtime pay, you should
contact an attorney immediately.
What Qualifies As Overtime
The FLSA states that an non-exempt employee “receives compensation
for his employment in excess of [40 hours] at a rate not less than
one and one-half times the regular rate at which he is employed.”
However, under the FLSA, not everything qualifies as work. For example,
paid vacation days do not count towards the initial 40 hours worked
in one week.
Under the FLSA, overtime worked does not equal compensation time
gained. If you are a non-exempt employee work more than 40 hours
in one week and your employer offers you an equal or greater amount
of time off in compensation, you should immediately
contact The DeBrota Law Firm LLC. Compensatory time off for
overtime hours worked is not allowed under the FLSA, and you may
be entitled to the overtime wages that your employer is withholding.
Unpaid Overtime Recovery Period
The FLSA allows recovery for work performed beginning two years
prior to a complaint being filed in court. You are allowed to recover
for an additional year if you can show the employer knowingly disregarded
the law regarding overtime pay. This statue of limitations is an
absolute rule and can very rarely be extended.
The longer you wait to file your claim the harder your wages will
be to recover and the less you will be able to recover. Please
contact us as soon as you determine your employer has failed
to pay you the overtime pay you have earned, so The DeBrota Law
Firm LLC can help you recover your unpaid wages.
You may be able to recover double your unpaid overtime, plus attorney
fees. If there are other employees who your employer is also cheating
out of overtime pay, they may be able to join in your case. However,
you must act within the recovery period.
Summary of Indiana Wage Laws
- Employers are required to pay employees at least semi-monthly
or bi-weekly. Payments should include all wages earned to a specific
date that is not more than ten (10) days prior to the date of
- Employers are permitted to make deductions from an employee
paycheck only if:
- There is an agreement in writing between the employer and
employee, the agreement is signed by the employee and employer
and the employee has the right to revoke.
- A copy of the deduction agreement must be delivered to
the employee within ten (10) days of execution.
- Only certain categories of deductions are allowed, including
but not limited to: insurance premiums, charitable contributions,
payments to an employee’s direct deposit
- Employers are not permitted to fine an employee and deduct
the amount of the fine from the employee’s pay.
- Employers may not deduct the cost of a mandatory uniform from
an employee’s paycheck.
- Employers must compensate an employee for time spent at mandatory
- Employers must pay at least the minimum wage of $5.15 per hour.
- Tipped employees should also be paid a total amount that is
at least the minimum wage. Employers are required to pay an hourly
base of $2.13 per hour. If the employee is not compensated at
a rate equal to the minimum wages after adding any tips, the employer
must pay the employee the difference.
- With a few exceptions, employers must pay overtime pay to non-supervisory
employees who work over 40 hours a week.
- When an employee ends employment (voluntarily or involuntarily)
- Receive a final check by midnight of the next regularly
scheduled pay day.
- Be paid for any accrued vacation pay, subject to the employer’s
personnel policy to the contrary.
- If an employee must file a claim against the employer to obtain
wages earned, he/she may recover lost wages, treble liquidated
damages and attorney fees.
- The Indiana Division of Wage & Hour Division may be able
to help an employee, if an employer has failed to pay wages due.
Such claims will be investigated by the Division unless:
- The claim exceeds $800.00.
- The employee has not yet asked the employer for the wages
- It is more than one year since the employee left employment
- The person working was an independent contractor, not an
- The employee has already filed a complaint in civil court.
- The employee did not perform the work in Indiana.
- The employer does not have facilities in Indiana.
- If a claim does not meet these criteria, the employee must
still file notice of the claim with the Wage and Hour Division
and obtain legal representation to pursue the claim in court.
Department of Labor – Wage & Hour Division:
402 West Washington Street, W195 Indianapolis, Indiana 46204
Under Indiana law, unpaid wage claims are subject to a two year
statute of limitiations, or recovery period. If you do not file
a complaint in court within this timeframe, you will be forever
barred from doing so. Contact
Amy DeBrota if your current or former employer owes you wages.
" All labor that uplifts humanity has dignity
and importance and should be undertaken with painstaking excellence."
Dr. Martin Luther King
The DeBrota Law Firm LLC, an Indianapolis employment law firm, represents clients throughout Indiana, including all central Indiana counties and the cities of Indianapolis, Bloomington, Elkhart, Franklin, Kokomo, Lafayette, New Albany, Muncie, Terre Haute, Fort Wayne, Hammond, Richmond, Marion and Anderson. The DeBrota Law Firm LLC represents employees with claims for unpaid wages or overtime, unpaid commissions, breach of contract, misclassified job titles, and violations of the Fair Labor Standards Act, as well as other types of employment related legal claims.