How To Win An Overtime Lawsuit

How To Win An Overtime Lawsuit

Cases for unpaid overtime arise under the Fair Labor Standards Act (“FLSA”), the federal law that generally provides for the payment of time-and-a-half overtime pay.

To win an unpaid overtime case, you must prove three (3) basic elements by a preponderance of the evidence:

(1) that you were employed by the defendant during the time involved;

(2) that your work was engaged in commerce or in the production of goods for commerce or the defendant’s business or businesses under unified operation or common control employed at least two persons and was engaged in commerce or the production of goods for commerce and had an annual gross sales of at least $500,000; and

(3) that the defendant failed to pay you overtime required by law.

Engaged In Commerce

The term “commerce” has a very broad meaning and includes any trade, commerce, transportation, transmission, or communication between any state and any place outside the state.

Examples of employees who are “engaged in commerce” under the Fair Labor Standards Act include anyone who uses a telephone, fax machine, the U.S. mail, or computer e-mail system to communicate with persons in another state. Also, it also includes employees who use electronic devices which authorize credit card purchases. As you can see the definition is very broad and determined on a case by case basis.

Calculating Overtime Rate

The Fair Labor Standards Act generally requires an employer to pay its employees at a rate of at least one and one-half their regular rate for time worked in one work week over forty hours. This is commonly known as time-and-a-half pay for overtime work.

An employee’s “regular rate” during a particular week is the basis for calculating any overtime pay due for that week. The regular rate for a week is determined by dividing the first 40 hours worked into the total wages paid for those 40 hours. The overtime rate, then, would be one and one-half of that rate and would be owed for each hour in excess of 40 hours worked during the work week.

Exemptions Under FLSA

Most employers justify not paying overtime by claiming an “exemption.” Probably the most common exemptions are the executive and administrative exemptions, but there are many more.

To receive the benefit of an executive exemption, the defendant must prove that your primary duty was managing the business or department of the business. For example, an executive director would likely be exempt under the FLSA, if they directed the work of at least two or more employees and had the authority to hire or fire other employees, or their suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees were given a particular weight.

To receive the benefit of an administrative exemption, the defendant must prove that your primary duty was the performance of work directly related to the management or general business operation of your employer and you exercised discretion and independent judgment with respect to matters of significance. An office manager may qualify for the administrative exemption.

When determining whether or not you’re an exempt employee it’s important to remember that what matters is the work you actually performed, not your written job description. In other words, if your job description states that you’re a manager, yet your primary duty is that of a front desk clerk, you’re likely non-exempt and owed overtime. As you may imagine, these type of cases are very fact dependent and vary on a case by case basis.


The measure of damages or money under the FLSA is the difference between what you should have been paid under the Act and the amount that you were actually paid. This is called back pay. Damages are not allowed as a punishment and cannot be imposed or increased to penalize your employer.

Finally, if successful in winning your case under the FLSA, you may be entitled to liquidated damages (double back pay), and reasonable attorneys fees.