Overtime FAQs

  1. Can my employer discharge me if I sue them for unpaid overtime wages?

    Not legally and not without risking serious penalty. Federal overtime law and Texas overtime law make it illegal for your employer to fire you or in any other way discriminate against you because you filed an overtime lawsuit or testified in an overtime pay proceeding.

    An employer who retaliates or discriminates against you in violation of overtime pay law may be subject to fines and even criminal prosecution, and you may be entitled to "legal or equitable relief." Punitive damages also may be available in appropriate cases.  These retaliation claims may be brought against individuals as well as companies.
  2. How long do I have to bring an overtime pay claim?

    Overtime law generally permits recovery for overtime work performed beginning two years before a lawsuit is filed. A three year statute of limitations applies if your employer "knew" that its employment and pay practices violated the FLSA, but "disregarded" these obligations. It is important to act as soon as you believe your overtime pay rights have been violated because nothing but the filing of a lawsuit "stops the clock" from running on your claims. A complaint to your employer, or the Labor Board (also known as the Department of Labor) does not stop the clock.
  3. Does my employer have to pay my attorneys' fees if I win my overtime case?

    Federal overtime law entitles employees to recover their reasonable attorneys' fees if they earned overtime pay. Even if a case does not proceed to trial, overtime lawsuit settlements routinely involve provisions for the employer to pay the employee's attorneys' fees.
  4. Do I have to reimburse my employer for its legal fees if I lose my overtime lawsuit?

    Not unless a court determines that your lawsuit was frivolous or baseless.  A losing party, however, may be ordered to pay for the "costs" of a lawsuit. "Costs" may include charges for copies, depositions, etc.
  5. How do I pay my lawyers to bring an unpaid overtime lawsuit?

    The terms of representation are specific to each relationship between the employee and his/her lawyer. Hersh Law Firm represents employees in overtime pay lawsuits on a contingency basis and fronts all litigation expenses except when otherwise agreed between the employee and law firm. We only recover our fees and costs if we win the case or reach a settlement with the other side. If we do not make a recovery for you, you do not pay anything.
  6. How long does an unpaid overtime lawsuit take?

    Each case is different and the amount of time necessary to conclude a case depends on many factors including the employer and the court. If a lawsuit is not necessary and a pre-lawsuit settlement can be reached, most cases are resolved in a couple of months. If a lawsuit is necessary, cases generally require a year or more to reach trial.
  7. Do all "similarly-situated" employees have to participate in an overtime pay lawsuit if one employee decides to sue?

    Absolutely not.  Overtime lawsuits are not "class actions."  They are "collective actions."  This means that you don't need to bring or join any lawsuit if you don't to.  However, you may be entitled to joint an existing overtime pay lawsuit if you are similarly situated to the employees who filed the suit.  If you don't join an existing overtime lawsuit, you she will not be eligible to recover any money as a result of the suit.
  8. Does it matter that I never reported or asked for overtime?

    It is the employer's obligation to control the work. If an employer does not wish work to be performed it must prohibit it. "Failure to ask" for overtime is usually not a defense for an employer in a federal overtime pay lawsuit. An exception might be if the employer has a requirement that generally all time be reported and actually has enforced it, or if an employee's failure to report means that the employer did not know the work was being performed.
  9. Does it matter that I did not obtain my employer's authorization or prior approval to work overtime?

    If your employer knew you were working overtime or reasonably should have known it, then you are entitled to be paid for the overtime. Many employers will tell employees that they will not pay for overtime that is not approved. However, if they know employees are working overtime, even if it is not approved, the law requires the employer to pay the employees for the overtime work.
  10. How do I prove the amount of time spent working overtime?

    Your employer has a duty to maintain records reflecting the time you spend performing compensable activities. If your employer does not maintain the required records, you are entitled to recover overtime pay based on your good faith, reasonable and realistic estimate of the time you worked. In other words, you may get to estimate how many overtime hours you worked. Your employer will have the burden to challenge the reasonableness of your estimates. Thus, as long as your count is reasonable, what you estimate may count as accurate.
  11. I already get overtime. Can I bring a lawsuit for unpaid overtime?

    It depends. Many employees put in "off the clock time" for which they are entitled to be paid but aren't. Federal overtime law defines "work" very broadly, and sometimes employers have failed to count all the hours an employee actually works.
  12. What activities are considered "work" under federal overtime law?

    The courts have held that work time includes all time spent performing job-related activities which genuinely benefit the employer, which the employer "knows or has reason to believe" are being performed by an employee, and which the employer does not prohibit the employee from performing. These can include activities performed during "off-the-clock" time, at the job site or elsewhere, whether "voluntary" or not. This might include meeting with customers, taking calls regarding work during evenings or on the weekend, and any other activities you engaged in for the benefit of the employer.
  13. Can I still file an overtime pay lawsuit if I signed a release or severance agreement saying I wouldn't sue the company?

    Yes.  Even if you signed the release or severance agreement, you still may be eligible to file an overtime pay lawsuit.  This is because employers cannot lawfully ask their employees to sign away their minimum wage or overtime pay rights.  Only waivers supervised by Labor Board/Department of Labor or obtained in connection with an overtime pay lawsuit are valid.

Texas overtime lawyer Barry Hersh explains overtime rights in plain English and aggressively represents employees in overtime pay lawsuits. To submit your claim for a free evaluation, contact us here.