Summary. Fifteen sequences. §1 takes ten seconds a day and decides most claims.

1. TODAY

  • Open a note on your phone. Write down the time you started and stopped work. Every day.
  • Include: pre-clock-in work · post-clock-out work · the meal break you did not actually get · messages answered from home
  • Understand the clock: the limitations period runs backward from the day you file. Every week of delay retires a week of claim.
  • Understand the burden: the recordkeeping duty is the employer's. Where records are inadequate, hours may be proven by reasonable inference and the burden shifts to them. No records is their problem.

2. Audit the pay stub — six months

  • Are the hours right? Compare to your log, your schedule, your memory
  • Is overtime paid at all? (If salaried → §3)
  • Is the overtime RATE right? The "regular rate" is not your hourly rate — it must include nondiscretionary bonuses, shift differentials, commissions, and most incentive pay
    • Find every bonus payment. Did an overtime recalculation follow it? Almost never does. This violation appears on no pay stub and is arithmetically certain.
  • What is deducted? Uniforms · tools · training · register shortages · breakage · walkouts — restricted or prohibited in many states, and any deduction dropping you below minimum wage is a federal violation
  • Automatic meal deductions on days you did not get a break
  • Pre-shift and post-shift time
  • Your rate against the STATE or CITY minimum wage, which is frequently higher than federal

3. If salaried — test the exemption

  • Salary alone proves nothing. It is one of three requirements, and the employer bears the burden.
  • Salary basis — a predetermined amount not reduced for quality or quantity of work
  • Salary level — at or above the threshold
  • DUTIES — what you actually do all day, not the job description
    • Executive: is management the primary duty? Do you customarily and regularly direct two or more full-time employees? Do you have authority or real influence over hiring and firing?
    • Administrative: office/non-manual work directly related to management or general business operations AND the exercise of discretion and independent judgment on matters of significance — following a detailed script or manual generally is not
  • Job title is irrelevant — "Assistant Manager," "Coordinator," "Analyst," "Supervisor"
  • HAS YOUR SALARY EVER BEEN DOCKED for a partial-day absence, register shortage, equipment damage, or slow business? Improper deductions can defeat the exemption entirely — potentially for everyone in the classification
  • Ask in writing: "Am I classified as exempt, and which exemption applies?"

4. If a "contractor" — test the classification

  • The agreement, the 1099, and a business license do not settle it
  • Signs of employment: the company sets when and where · you use their equipment · you cannot subcontract · no other clients · you did the same job as an employee before · uniform or logo · they set your rate · indefinite relationship · terminable at will
  • The decisive question in ABC-test states: is the work outside the company's usual course of business? A driver for a delivery company, a stylist at a salon, a nurse at a staffing agency — this prong fails
  • Note the tests differ by statute and by state
  • What misclassification cost you: overtime · minimum wage · employer payroll tax share · workers' compensation · unemployment eligibility · anti-discrimination coverage

5. Off-the-clock work — where it hides

  • Pre-shift setup · post-shift closing · security screening · computer boot-up · cash counting
  • Working through unpaid meal breaks — unpaid only if completely relieved of duty
  • Automatic meal deductions taken regardless
  • Travel between job sites during the workday
  • Mandatory training and meetings
  • After-hours email, messages, and calls
  • On-call time with severe restrictions
  • Rounding that runs one direction
  • The standard is "suffered or permitted." Authorization is irrelevant if they knew or had reason to know. A policy against it does not excuse accepting the benefit of it.

6. If tipped

  • Was advance notice of the tip credit given?
  • Do tips + cash wage reach at least the full minimum wage every week?
  • Do you retain all tips except a valid pool?
  • Does the pool include only employees who customarily and regularly receive tips?
  • Do managers or supervisors take a share? They may not, ever
  • Does the employer keep any portion?
  • Are credit card fees deducted beyond the actual cost?
  • Substantial time on non-tipped duties at the tipped rate?
  • Failing ANY requirement means the tip credit is lost entirely — full minimum wage owed for all hours
  • Several states prohibit the tip credit outright. Check.

7. Breaks — a state law question

  • Federal law does not require meal or rest breaks — it requires that short breaks (generally under 20 min) be paid, and that an unpaid meal period involve being completely relieved of duty
  • Check state law: required meal periods · paid rest breaks · and penalty payments — frequently one hour of pay per day a required break was missed
  • Also state law: daily overtime · double time · pay frequency · permissible deductions · reporting-time pay · split-shift premiums

8. Reconstruct the hours

  • Build a week-by-week table: hours worked · hours paid · difference · basis
  • It needs to be reasonable, consistent, and supported — not perfect
  • Evidence: your contemporaneous notes · texts and emails with timestamps · badge swipe logs · POS records · computer login/logout · dispatch and route records · GPS/telematics · charting timestamps · schedules · security footage · co-workers · your pay stubs

9. Send a preservation letter

  • Time records and timekeeping data · payroll records including regular rate calculations and bonus payments · schedules · badge logs · POS, dispatch, and route records · login records · security footage (overwritten in days — ask now) · communications about hours, breaks, or pay · job descriptions and any exemption analysis
  • Ask for written confirmation of preservation

10. Complain in writing — this creates the retaliation claim

  • In writing. Keep a copy. Note the date. Forward to your personal email.
  • Simple: "Since [date] I've been working about [N] hours per week but my stubs show [N] and no overtime. Could you look into this?"
  • Understand: protected activity includes internal complaints in most jurisdictions
  • If ANYTHING changes afterward — hours cut · schedule changed · discipline · a sudden performance issue · exclusion from overtime · termination — write it down the same day and email it to yourself
  • The retaliation claim is frequently the stronger one — it requires a calendar, not a reconstruction of two years of hours

11. Choose the forum

  • STATE LABOR AGENCY — usually the right first stop. Free, no lawyer, administrative claim with a hearing. State law frequently provides more: higher minimums · daily overtime · break penalties · waiting-time penalties · longer limitations · treble damages · personal liability for owners
  • FEDERAL WAGE AND HOUR DIVISION. Free; may cover everyone at the workplace. But: you do not control it · slow · a supervised payment may exclude liquidated damages and generally waives your private claim for those wages · filing does NOT stop the limitations clock
  • PRIVATE LAWSUIT. You control it · liquidated damages are the default · attorney's fees shift · state claims can be joined · can be a collective action. The consultation is nearly always free.
  • SMALL CLAIMS, for a modest amount where permitted. No fee shifting, no collective mechanism.
  • CHECK FOR AN ARBITRATION AGREEMENT. It changes the strategy — frequently toward an agency filing, which such a clause typically cannot foreclose.

12. Know the remedies

  • Back wages
  • Liquidated damages equal to the back wages — DOUBLING the recovery — is the DEFAULT unless the employer proves good faith
  • Attorney's fees and costs to a prevailing plaintiff
  • Two-year limitations period, three for a willful violation — and it runs backward from filing
  • Each payday is a separate violation
  • State remedies are frequently better

13. Final paycheck

  • Check the state deadline — commonly immediately or within 72 hours on discharge, next regular payday on resignation
  • Check the penalty — in some states continuing wages for each day late, up to 30 days. Frequently larger than the wages themselves.
  • Accrued vacation — a state question; in some states earned wages that cannot be forfeited
  • Earned commissions
  • Deductions for equipment, uniforms, shortages, or training — heavily restricted in many states
  • Withholding the check pending return of property is prohibited in most states
  • Demand it in writing, citing the deadline and the penalty

14. Collecting — who else to name

  • Individual owners, officers, and managers with operational control — individual liability exists federally and by statute in several states
  • Joint employers: staffing agency + client · franchisor + franchisee · general contractor + subcontractor's workers (direct liability in several states)
  • Successor entities — same owners, equipment, and workforce under a new name
  • Contractor licensing bonds and state wage payment funds — ask the labor agency
  • Public projects: prevailing wage obligations and a payment bond you can claim against directly
  • Compare: the paycheck · the W-2 or 1099 · the sign on the building · the vehicles · the uniform · who actually directs you. Where they differ, name all of them.

15. While still employed

  • Keep the daily log
  • Save every pay stub and check them
  • Screenshot the schedule weekly
  • Email yourself a weekly summary — a dated email you control
  • Note every bonus and its date
  • Ask about classification in writing
  • Complain in writing when something is wrong
  • Do not sign a "paid in full" acknowledgment or a release without understanding it
  • You cannot privately waive these rights — an agreement to forgo overtime is generally unenforceable, and settling a federal wage claim frequently requires court or agency approval

Related documents

Educational only, not legal advice. State wage and hour law frequently provides more than federal law — check your state's minimum wage, daily overtime, break penalties, final paycheck deadline, and limitations period.