Common FLSA violations

Failure to pay overtime

Covered non-exempt employees generally must receive overtime pay when they work more than 40 hours in a workweek. The overtime rate must be at least one-and-one-half times the employee’s regular rate of pay.

Overtime violations may happen when an employer pays straight time for overtime hours, averages hours across two weeks, excludes required compensation from the regular rate, or claims an employee is exempt without meeting the legal requirements.

For a deeper discussion, visit Swartz Swidler’s page for unpaid overtime attorneys. Pennsylvania employees may also want to review Pennsylvania overtime laws, especially if the dispute involves salary classification, required overtime, or overtime calculations.

Failure to pay for all hours worked

Employees generally must be paid for all compensable time worked. This can include time before or after a scheduled shift if the employer requires or allows the work.

Examples may include:

• pre-shift setup;
• post-shift cleanup;
• donning and doffing required gear;
• working through unpaid meal breaks;
• responding to work calls, texts, or emails after hours;
• travel between job sites during the workday;
• waiting time when employees are required to remain available; or
• remote work performed outside scheduled hours.

Meal break and rest break issues can also create unpaid wage problems. If your employer automatically deducted lunch time, required you to work through breaks, or failed to count interrupted meal periods as work time, review Swartz Swidler’s guides to New Jersey meal and rest breaks and Pennsylvania meal and rest break rules.

Minimum wage violations

The federal minimum wage remains $7.25 per hour. New Jersey has a higher minimum wage for most workers, which is $15.92 per hour effective January 1, 2026. Pennsylvania’s minimum wage remains $7.25 per hour.

Employees may have a minimum wage claim if deductions, unpaid time, unpaid training, off-the-clock work, tip credit issues, or unpaid commissions cause their wages to fall below the required minimum wage.

If you want a broader explanation of why minimum wage protections exist and how they affect employees, review Swartz Swidler’s guide to minimum wage protections.

Tipped wage and tip pool violations

Tipped employees have special protections. Under the FLSA, an employer may claim a tip credit only if legal requirements are met. Employers must ensure that the employee’s direct wages plus tips equal at least the required minimum wage, and employers may not keep employees’ tips.

Tip violations may include:

• paying a tipped cash wage without meeting tip credit requirements;
• managers, supervisors, or employers keeping tips;
• requiring improper tip pooling;
• deducting walkouts, shortages, or breakage from wages in a way that violates wage law;
• failing to make up the difference when tips plus wages do not reach the minimum wage;
• using the wrong rate to calculate overtime for tipped workers; or
• taking tips that customers intended for employees.

Misclassification as exempt from overtime

Some employers avoid overtime by classifying employees as exempt even though the employee’s actual job duties do not qualify. Being paid a salary, having a professional-sounding title, or being called a manager does not automatically make an employee exempt.

Misclassification red flags may include:

• you are called a manager but spend most of your time doing non-managerial work;
• you do not have real authority over hiring, firing, discipline, or scheduling;
• you follow detailed procedures rather than exercising independent judgment on significant matters;
• your employer switched you from hourly to salary and stopped paying overtime;
• you are paid a day rate or flat rate but regularly work more than 40 hours; or
• your employer cannot explain which exemption applies.

If your employer changed your pay structure, read more about whether an employer can switch you from hourly to salary.

Misclassification as an independent contractor

Some workers are called independent contractors even though they function like employees. Misclassification may allow employers to avoid minimum wage, overtime, payroll taxes, unemployment contributions, workers’ compensation, and other legal obligations.

Signs of possible misclassification may include:

• the company controls how, when, and where you work;
• you work set hours or regular shifts;
• you use company tools, software, uniforms, or equipment;
• you perform work central to the company’s business;
• you cannot negotiate rates or hire helpers in a meaningful way;
• you depend economically on the company; or
• you are treated like employees doing the same work.

Comp time instead of overtime

Many private employers cannot avoid overtime by giving compensatory time off instead of overtime pay. If you worked overtime hours, your employer generally cannot simply say you will receive time off later instead of overtime wages.

Prevailing wage and government contract pay issues

Some workers on government-funded construction, service, or public works projects may have additional wage protections under prevailing wage laws or contract-specific requirements. These claims are fact-specific and depend on the project, contract, classification, location, and applicable law.

New Jersey FLSA and wage claims

New Jersey employees may have rights under both the FLSA and New Jersey wage and hour laws. New Jersey’s minimum wage for most workers is $15.92 per hour effective January 1, 2026. New Jersey also has rules addressing overtime, tipped wages, wage payments, misclassification, and retaliation after wage complaints.

When state and federal laws both apply, employees may be entitled to the standard that provides greater protection.

New Jersey wage issues may also involve unpaid lunch time, short rest breaks, automatic meal deductions, final pay, or unused PTO after termination. For related guidance, review Swartz Swidler’s pages on New Jersey meal and rest breaks and final pay and PTO issues.

Pennsylvania and Philadelphia FLSA and wage claims

Pennsylvania employees may have rights under both the FLSA and Pennsylvania wage laws. Pennsylvania’s minimum wage is $7.25 per hour, and most employees must receive overtime pay after 40 hours in a workweek unless an exemption applies.

Philadelphia employees may also face wage and hour issues involving misclassification, off-the-clock work, tipped wages, salary classification, unpaid overtime, or retaliation after wage complaints.

Can your employer retaliate after you complain about wages?

Your employer should not fire, demote, discipline, threaten, reduce hours, cut pay, or otherwise punish you because you asked about unpaid wages, complained about overtime, reported a wage violation, joined a wage claim, or cooperated with an investigation.

Retaliation may include:

• termination;
• reduced hours;
• loss of overtime opportunities;
• demotion;
• discipline or sudden write-ups;
• threats or intimidation;
• worse assignments;
• pressure to resign;
• negative references; or
• being treated worse after asking about pay.

If you were punished after raising pay concerns, you may also have a workplace retaliation claim.

What evidence helps prove an FLSA claim?

Employees do not always have perfect time records. FLSA and wage claims may be supported by schedules, pay records, messages, personal notes, job records, and testimony. The goal is to show what you worked, what you were paid, how you were classified, and what the employer knew.

What should you do if your FLSA rights were violated?

1. Track your hours

Write down when you started work, stopped work, took breaks, worked through lunch, traveled between job sites, responded to after-hours messages, or worked remotely.

2. Save your pay records

Save pay stubs, timecards, direct deposit records, schedules, payroll messages, commission records, bonus records, and tip reports.

3. Write down your actual duties

If your employer says you are exempt, your actual job duties matter. Keep notes about what you do each day and how much authority you actually have.

4. Preserve wage complaints

If you asked HR, payroll, or management about unpaid wages, save those messages and any responses.

5. Watch for retaliation

Document any schedule cuts, write-ups, threats, reduced hours, demotion, loss of overtime, or termination after you raise wage concerns.

6. Speak with an employment lawyer

FLSA claims can involve complex exemptions, regular rate calculations, class or collective claims, recordkeeping issues, and deadlines. Legal guidance can help determine whether you may be owed wages.

How Swartz Swidler can help

FLSA and wage cases require careful review of the hours worked, pay method, job duties, time records, tip practices, employer policies, and classification. Swartz Swidler helps employees evaluate whether their wage rights were violated and what evidence may support a claim.

Our attorneys help employees with FLSA and wage matters involving:

• unpaid overtime;
• minimum wage violations;
• off-the-clock work;
• tipped wage and tip pool violations;
• salary misclassification;
• independent contractor misclassification;
• improper overtime rate calculations;
• automatic meal break deductions;
• unpaid pre-shift or post-shift work;
• unpaid remote or after-hours work;
• prevailing wage issues;
• wage retaliation; and
• class or collective wage claims involving groups of employees.

Frequently asked questions about the FLSA

What is the FLSA?

The Fair Labor Standards Act is a federal wage and hour law that sets minimum wage, overtime, recordkeeping, and child labor standards for covered workers.

Who is protected by the FLSA?

Many employees are covered by the FLSA, but coverage and exemptions depend on the employer, the job, the employee’s duties, and the type of work performed.

Does the FLSA require overtime pay?

Yes, covered non-exempt employees generally must receive overtime pay at not less than one-and-one-half times their regular rate for hours worked over 40 in a workweek.

Does salary mean I am exempt from overtime?

No. A salary alone does not make an employee exempt from overtime. Actual job duties and exemption requirements matter.

Can my employer average my hours over two weeks?

Generally, no. Overtime is calculated by workweek. An employer usually cannot avoid overtime by averaging hours over two or more weeks.

Can I be required to work off the clock?

An employer generally must pay for compensable work time it requires or allows. Off-the-clock work may include pre-shift work, post-shift work, remote work, interrupted breaks, or required after-hours tasks.

Can managers take part of my tips?

Employers, managers, and supervisors generally may not keep employees’ tips. Tip pooling and tip credit rules are technical and depend on how the employer pays workers.

Can independent contractors bring FLSA claims?

True independent contractors generally are not covered as employees under the FLSA. However, workers who were misclassified as independent contractors may have wage claims if they were legally employees.

What damages may be available in an FLSA case?

Depending on the facts, employees may seek unpaid wages, unpaid overtime, liquidated damages, attorneys’ fees, costs, interest, or other relief. Available remedies vary by claim.

How soon should I contact an FLSA attorney?

You should seek guidance as soon as possible. Wage claims can involve deadlines, lost records, changing schedules, and retaliation concerns.

Talk to an FLSA attorney

If your employer failed to pay overtime, required off-the-clock work, misclassified you, withheld tips, paid less than the minimum wage, or retaliated after a wage complaint, Swartz Swidler can help you understand your options.

This page is for general informational purposes only and is not legal advice. FLSA, wage and hour, overtime, minimum wage, tip credit, misclassification, retaliation, prevailing wage, and class or collective action claims depend on the facts, applicable law, deadlines, employer size, employee status, duties, pay structure, and available evidence.