employment

Recover Unpaid Wages

Federal & State Law Editorial TeamLast reviewed: May 2026

Immediate Deadlines

FLSA statute of limitations:2 years from underpayment (3 years for willful violations)
State wage claim filing:1-6 years depending on state (CA: 3 years; NY: 6 years)
Final paycheck delay penalties begin:Immediately on termination in CA; 6-30 days in other states

Documents You'll Need

Pay stubs and W-2s for the relevant period
Time records, schedules, punch-in/out data
Personal log of hours actually worked (if employer records are wrong)
Job description and offer letter showing duties
Employer's policies on overtime, breaks, expenses, commissions
Direct deposit records or canceled checks
Texts/emails directing you to work off the clock

Step-by-Step

Calculate exactly what you are owed

Add up all unpaid amounts: minimum wage violations, overtime (1.5x for hours over 40/week federally; daily overtime in CA and a few others), missed meal/rest break premiums, unreimbursed business expenses, unpaid commissions or bonuses earned, accrued unused vacation (in states requiring payout), and final paycheck. Keep your math organized — many agencies require detailed itemization.

Check if you are properly classified

Misclassification is a huge source of wage theft. 'Salaried' does NOT automatically mean exempt from overtime — you must meet both a salary test (currently $43,888/year for FLSA, higher in some states) and a duties test. Independent contractor (1099) classifications are often illegal under the FLSA Economic Realities test or stricter state ABC tests (CA AB 5). Misclassification claims can recover years of unpaid overtime.

Request your time and pay records

Most states give employees the right to inspect their personnel and payroll files. Send a written request via certified mail. Federal law (29 CFR 516) requires employers to keep time records for non-exempt employees for 3 years. If the employer's records are missing or inaccurate, your own honest records and testimony can be sufficient evidence under Anderson v. Mt. Clemens (1946).

Send a written demand to the employer

Before filing an agency claim or lawsuit, many lawyers send a demand letter itemizing wages owed, citing the relevant statutes, and demanding payment within 10-30 days. This documents your effort to resolve, may trigger settlement, and often satisfies pre-litigation notice requirements. Send via certified mail or email with read receipt.

File a wage claim with your state labor agency

State labor agencies (CA Labor Commissioner, NY DOL, TX Workforce) accept wage claims directly from workers — no lawyer required. Filing is free. The agency investigates, may hold a hearing (Berman hearing in CA), and issues a binding order. State claims often recover more than FLSA-only claims because state laws include liquidated damages, waiting time penalties, and itemized wage statement penalties.

Alternative: file with U.S. Department of Labor

The DOL Wage and Hour Division investigates FLSA violations. Filing online at DOL.gov is free and confidential. WHD can recover unpaid wages plus an equal amount in liquidated damages for willful violations. DOL handles cases involving multiple employees efficiently and can impose civil money penalties. Statute of limitations is 2 years (3 for willful). Decisions are not always faster than state agencies.

Alternative: sue in court

Wage cases can be filed directly in court (state or federal). FLSA cases allow 'collective actions' (similar to class actions) where other employees can opt in. State wage laws often allow class actions. Successful plaintiffs recover unpaid wages, liquidated/multiple damages, interest, and attorney fees (which is why many employment lawyers take wage cases on contingency). Trials are rare — most cases settle.

How This Varies by State

California: most pro-employee. Daily overtime (8+ hours), meal/rest break premiums, waiting time penalties (up to 30 days wages), wage statement penalties ($50/$100 per pay period), PAGA representative actions, 3-year SOL. New York: 6-year SOL on most wage claims, weekly wage payment for manual workers (frequency-of-payment claims), 100% liquidated damages, attorney fees. Texas: minimal protections beyond FLSA; final paycheck within 6 days of termination. Florida: no state minimum wage above federal in most contexts, no daily overtime. Massachusetts: triple damages mandatory on most wage claims.

Federal Law Considerations

FLSA covers most employers with $500,000+ revenue or any employee engaged in interstate commerce. Some workers excluded: independent contractors, certain agricultural workers, executive/administrative/professional exemptions, outside salespersons. Federal contractors must comply with Service Contract Act and Davis-Bacon Act prevailing wages. The DOL recently raised the white-collar salary threshold; some thresholds are tied up in litigation. PUMP Act requires lactation breaks. PAGA in California allows private prosecution of Labor Code violations on behalf of the state.

Common Mistakes to Avoid

Letting the 2-year FLSA clock run on old unpaid overtime
Accepting employer's 'salaried means no overtime' claim without checking duties test
Cashing a final paycheck marked 'payment in full' may waive additional claims (consult a lawyer first)
Failing to keep your own time records when employer's records are wrong
Quitting and not requesting final paycheck in writing (triggers waiting time penalties)

Official Resources

DOL: How to File a Wage Complaint DOL: FLSA Overview State Labor Office Contacts

Related Resources on This Site

Tools

Forms

wage claim
demand letter

Guides

When to Get a Lawyer

Misclassification cases (independent contractor or exempt employee) — usually large damages
Unpaid wages exceeding $10,000 or involving multiple employees
When the employer has retaliated against you for raising the issue
Before signing any settlement, release, or severance agreement

Frequently Asked Questions

Can my employer retaliate if I file?

No. The FLSA and every state wage law prohibit retaliation for filing wage claims or complaining about pay. Retaliation includes firing, demotion, schedule cuts, harassment, and threats about immigration status. Retaliation claims are often easier to win than the underlying wage claim and carry separate damages.

What if I was paid in cash 'under the table'?

You still have wage claim rights even if your employer paid you cash and didn't report your wages. Immigration status does not bar wage claims under the FLSA (Hoffman Plastic limited some remedies but did not eliminate the right to back pay for hours worked). State agencies generally do not share information with immigration authorities.

Can I recover unpaid commissions or bonuses?

Yes if they were earned under the employer's plan. Most states treat earned commissions as wages. The employer must follow its written commission plan; ambiguities are construed against the employer who drafted the plan. Discretionary bonuses (truly at the employer's discretion) may not be recoverable, but conditional bonuses (if you hit X target) usually are.

How long do wage cases take?

State agency claims: 4-12 months from filing to decision. DOL investigations: 6-18 months. Lawsuits: 12-24 months to settlement; longer if litigated through trial. Class/collective actions: 2-5 years. Many cases settle within 6 months once an attorney sends a strong demand.

This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.