Our employment law attorneys have secured millions of dollars in lost wages and unpaid overtime and can help you understand your rights and fight to recover compensation owed to you. Employers are required to compensate qualified employees for all overtime pay unless the employee is exempt under either state or federal law.

Employers are required to compensate qualified employees for all overtime pay unless the employee is exempt under either state or federal law. Our employment law and class action attorneys have secured millions of dollars in unpaid overtime claims and lost pay and can help you understand your rights and fight to recover compensation owed to you.

Oftentimes employers try to avoid paying overtime by misclassifying certain employees as exempt from wage and hour laws. These employers pay workers salaries rather hourly wages, causing millions in lost income to thousands of workers each year. Who’s entitled to overtime? What’s the difference between exempt and non-exempt employees? How can I recover lost wages?

Does an employer have to pay overtime after 40 hours a week?

Employers must pay employees for all hours worked, including when an employee works overtime. The federal Fair Labor Standards Act (“FLSA”) requires covered employers to pay overtime wages to employees for all hours worked in excess of 40 hours per work week. Under the FLSA, covered employers include businesses with annual gross volume of sales made or business done of not less than $500,000.00.

By contrast, the Minnesota Fair Labor Standards Act covers all employers. However, Minnesota law requires employers to pay overtime wages to employees in excess of 48 hours per workweek.

Under federal and law, overtime wages are mandatory and any agreement or policy to not pay overtime is invalid. Even if an employer doesn’t “approve” overtime, it must pay an employee overtime wages if the employee actually worked more than 40 hours (or 48 hours in Minnesota) in a work week. Employers have violated the law and engaged in wage theft when they require employees to:

  • Start work before clocking in;
  • Clock out, but continue working;
  • Work during meal periods;
  • Work overtime off-the-clock;
  • Work at home without pay; and/or
  • Check/respond to emails during non-business hours.

How is overtime pay calculated?

Overtime wages paid by employers must be at least one and one-half times the employee’s regular rate of pay. The regular rate of pay is calculated by dividing the employee’s total compensation for the week by the number of hours worked in that week. An employee’s regular rate of pay includes all earnings paid to the employee during the workweek and may include certain payments such as non-discretionary bonuses.

What hours are counted for overtime purposes?

All hours that the employee is required to be on work premises, except for meal periods, are counted for overtime purposes. Vacation time, holiday hours, and sick leave are not counted in overtime calculations. “Off the clock” work counts towards overtime calculations. For example, employees who are required to log in to computer systems before punching in to a time clock must be paid for that time and are entitled to overtime wages if the computer boot time causes an employee to work more than 40 hours in a week.

Some industries pay employees a flat, pre-set amount for each day of work regardless of the number of hours the employee spends at a jobsite. This arrangement is called a “day rate.” Day rate compensation plans may violate federal and state wage and hour laws if the employee works more than 40 hours per week and does not receive overtime premium pay.

Who qualifies for overtime pay?

Non-exempt employees must be paid for all hours worked for the benefit of the employer. Employers are liable to employees for unpaid overtime wages. When non-exempt employees work over 40 hours (or 48 hours) a week, they must be paid overtime. This applies to work performed away from the job site, including work performed at home. To be compensable, an employer must be aware that off-the-clock work is being performed by the employee.

Who is exempt from overtime pay?

Certain employees and employers are exempt from overtime wage laws. Some examples of employees who are exempt from overtime pay requirements are executive, administrative, or professional employees who are paid a salary, retail employees paid on a commission basis, outside salespersons, some agricultural workers, and professionals. (See a list of federal and state exemptions). Because many of these employees are often misclassified as exempt employees, a careful analysis by an experienced employment lawyer should be conducted to determine if the exemption is proper.

Class Action and Collective Action Lawsuits Hold Employers Accountable for Unpaid Overtime

In recent years, our class action attorneys have successfully brought collective action lawsuits where employers failed to compensate employees for responding to work-related emails, text messages, and voicemails around the clock or while off duty. More traditionally, employees have used class actions as a vehicle to compensate them for unpaid time spent working before and after their scheduled shifts – often referred to as “donning and doffing.”


Wanta Thome PLC is committed to protecting the rights of all employees through individual representation, as well as class action litigation in Minnesota and throughout the United States. If you believe you are entitled to lost wages or unpaid overtime, contact us for a free initial consultation.


Contact us for a no-obligation confidential consultation with our employment law team.

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