Who is entitled to overtime pay?

Most non-exempt employees are entitled to overtime pay when they work more than 40 hours in a workweek. Being paid a salary does not automatically make someone exempt. Having a job title such as manager, assistant manager, coordinator, lead, administrator, or specialist also does not automatically remove overtime rights.

Whether you are exempt or non-exempt depends on the law, your pay structure, and your actual job duties. For many executive, administrative, and professional exemptions, an employer must show that the employee meets salary basis, salary level, and duties requirements.

Common overtime violations

Off-the-clock work

Off-the-clock work happens when an employee performs job duties before clocking in, after clocking out, during unpaid breaks, at home, or through phone and email work without pay. If your employer knows or should know you are working, the time may need to be paid.

Examples include:

• preparing equipment before the shift starts;
• cleaning or closing after clocking out;
• responding to work calls, texts, or emails after hours;
• logging into systems before paid time starts;
• finishing paperwork after the shift;
• working through unpaid meal breaks;
• traveling between job sites during the day; or
• waiting for assignments while required to remain available.

Misclassified as exempt

Some employers avoid overtime by labeling employees as exempt even though their duties do not qualify. A title alone does not determine exemption status. The actual work performed matters.

Misclassification red flags include:

• you are called a manager but do not truly manage employees;
• you spend most of your time doing the same work as hourly employees;
• you do not have meaningful authority over hiring, firing, discipline, or scheduling;
• you follow detailed procedures instead of exercising independent judgment on significant matters;
• your employer stopped paying overtime after switching you from hourly to salary;
• your employer cannot explain which exemption applies; or
• your pay is docked in ways that may conflict with salary-basis rules.

If your employer changed you from hourly to salary and stopped paying overtime, review our guide on whether an employer can switch you from hourly to salary.

Misclassified as an independent contractor

Some workers are called independent contractors even though they function like employees. Misclassification can allow employers to avoid overtime, minimum wage, payroll taxes, unemployment contributions, and other workplace protections.

Signs of possible misclassification may include:

• the company controls how, when, and where you work;
• you work set shifts or regular hours;
• you use company tools, equipment, uniforms, or systems;
• you perform work that is central to the company’s business;
• you do not operate an independent business;
• you cannot meaningfully negotiate your rate or hire helpers; or
• you depend economically on the company for work.

Improper overtime rate

Overtime should generally be based on the employee’s regular rate of pay, not just the base hourly rate if other compensation must be included. Depending on the pay plan, the regular rate may include certain commissions, non-discretionary bonuses, shift differentials, incentive pay, or other compensation.

If your employer paid overtime but excluded commissions or bonuses from the calculation, your overtime rate may have been too low.

Averaging hours over two weeks

Overtime is generally calculated by the workweek. An employer usually cannot avoid overtime by averaging hours over two weeks. For example, if an employee works 50 hours one week and 30 hours the next, the employer generally cannot say the employee averaged 40 hours and owes no overtime.

Forced overtime and overtime pay

Employers may require overtime in many situations, but non-exempt employees generally must be paid properly for overtime hours. If your employer required extra hours, threatened discipline for refusing overtime, or failed to pay the overtime rate for required work, review Swartz Swidler’s guide to forced overtime and overtime pay.

Automatic meal break deductions

Some employers automatically deduct meal breaks from every shift even when employees continue working. If you regularly work through lunch, answer calls during lunch, remain on duty, or are interrupted during unpaid breaks, those deductions may create unpaid wage issues.

New Jersey unpaid overtime claims

New Jersey wage and hour law generally requires covered non-exempt employees to receive overtime pay at one-and-one-half times their regular rate for hours worked over 40 in a workweek. New Jersey’s minimum wage for most workers is $15.92 per hour as of January 1, 2026.

New Jersey employees may have overtime claims involving unpaid hours, illegal deductions, misclassification, off-the-clock work, unpaid commissions, withheld wages, or retaliation after complaining about pay.

You may also want to review Swartz Swidler’s guide on whether you can sue your employer for unpaid wages.

New Jersey employees with automatic lunch deductions, interrupted meal periods, or unpaid work during breaks may also want to review Swartz Swidler’s guide to unpaid meal breaks in New Jersey.

Pennsylvania and Philadelphia unpaid overtime claims

Pennsylvania law also protects many employees from unpaid overtime. Most Pennsylvania employees who work more than 40 hours in a workweek must be paid overtime unless a specific exemption applies.

Pennsylvania employees may still be owed overtime even if they are salaried. The analysis depends on pay, job duties, exemptions, and the actual work performed. Philadelphia employees may also have related wage and retaliation issues depending on the facts.

For more Pennsylvania-specific guidance, review Swartz Swidler’s resources on overtime laws in Pennsylvania and unpaid meal breaks.

What evidence helps prove unpaid overtime?

Employees often worry that they do not have a perfect time record. But unpaid overtime cases can be supported by many types of evidence, including pay records, schedules, messages, work assignments, personal notes, location data, and testimony.

What should you do if your employer is not paying overtime?

1. Track your hours

Keep a private record of your start time, end time, breaks, travel between job sites, remote work, after-hours messages, weekend work, and any tasks performed off the clock.

2. Save pay records

Save pay stubs, direct deposit records, timecards, schedules, pay plans, commission records, bonus records, and any payroll messages.

3. Write down your actual job duties

If your employer says you are exempt, write down what you actually do each day. Your real duties may matter more than your title.

4. Ask questions carefully

You can ask HR or payroll how overtime is calculated, whether you are classified as exempt or non-exempt, and which exemption the employer believes applies.

5. Watch for retaliation

Your employer should not punish you for asking about unpaid wages, complaining about overtime, filing a wage complaint, or participating in an investigation.

6. Speak with an employment lawyer

Unpaid overtime claims can involve technical exemptions, damages calculations, deadlines, and retaliation concerns. A wage and hour attorney can review your pay structure, duties, hours, and available evidence.

Can your employer retaliate if you complain about unpaid overtime?

Your employer should not retaliate against you because you asked about overtime, complained about unpaid wages, reported wage theft, filed a wage complaint, or participated in a wage investigation.

Retaliation may include:

• termination;
• reduced hours;
• schedule changes;
• demotion;
• discipline or write-ups;
• threats or intimidation;
• worse assignments;
• loss of overtime opportunities;
• pressure to resign; or
• blacklisting or negative references.

If you were punished after asking about overtime, you may also have a workplace retaliation claim.

How Swartz Swidler can help

Unpaid overtime cases often require a detailed review of hours worked, pay records, job duties, classification, regular rate calculations, and employer policies. Swartz Swidler helps employees evaluate whether overtime was owed and what evidence may support a claim.

Our attorneys help employees with wage and hour matters involving:

• unpaid overtime;
• off-the-clock work;
• misclassification as exempt;
• misclassification as an independent contractor;
• salary misclassification;
• unpaid commissions or bonuses affecting overtime;
• automatic meal break deductions;
• unpaid pre-shift or post-shift work;
• retaliation after wage complaints;
• minimum wage violations;
• illegal deductions or withheld wages; and
• collective or group wage claims where multiple employees were affected.

Frequently asked questions about unpaid overtime

Who is entitled to overtime pay?

Most covered non-exempt employees are entitled to overtime pay when they work more than 40 hours in a workweek. Whether an employee is exempt depends on the law, pay structure, and actual job duties.

Does salary mean I am not entitled to overtime?

No. Many salaried employees are still non-exempt and must be paid overtime. A salary alone does not make an employee exempt from overtime.

Can my employer call me a manager to avoid overtime?

A job title alone does not decide overtime rights. If you are called a manager but mostly perform non-managerial work and lack real management authority, you may still be owed overtime.

Can I be owed overtime for working through lunch?

Possibly. If your employer automatically deducted a meal break but you kept working, answered calls, stayed on duty, or were regularly interrupted, that time may need to be paid.

Can my employer average my hours over two weeks?

Generally, overtime is calculated by the workweek. An employer usually cannot avoid overtime by averaging hours across multiple weeks.

What if I do not have timecards?

You may still have evidence. Schedules, pay stubs, calendars, emails, texts, work orders, GPS data, personal notes, and coworker testimony may help show hours worked.

Can independent contractors recover unpaid overtime?

True independent contractors are generally not covered by overtime laws. But workers who were misclassified as independent contractors may be entitled to overtime if they were legally employees.

What damages may be available in an unpaid overtime case?

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

Can I be fired for complaining about unpaid overtime?

An employer should not fire or punish an employee for asking about unpaid overtime, complaining about wage violations, filing a wage complaint, or participating in a wage investigation.

How soon should I contact an unpaid overtime attorney?

You should seek guidance as soon as possible. Deadlines can vary depending on the law and facts, and early action can help preserve pay records, schedules, messages, and witness information.

Talk to an unpaid overtime attorney

If you worked more than 40 hours in a workweek and were not paid overtime, Swartz Swidler can help you understand whether you may be owed wages. You do not need to know whether you were legally exempt before asking for help. Our attorneys can review your pay records, job duties, hours worked, and employer classification.

This page is for general informational purposes only and is not legal advice. Overtime, wage, misclassification, exemption, retaliation, and damages issues depend on the facts, applicable law, deadlines, employer size, employee status, pay structure, duties, and available evidence.