29 U.S.C. §§ 206, 207, 216(b)
FLSA: unpaid wages, unpaid overtime, and the collective action that does not toll
A federal claim in United States district courts · Last verified August 26, 2026
The Fair Labor Standards Act is the federal wage-and-hour statute: minimum wage, overtime at one and a half times the regular rate past 40 hours in a week, and protection against being punished for complaining.
It has one feature that catches people repeatedly. A group wage case under this statute is not a class action. Nobody is in it until they personally sign a paper and file it with the court — and until they do, their own deadline keeps running.
What the claim is
An employer did not pay what the law requires. The recurring patterns:
- Misclassification as exempt. The employee is paid a salary and told that settles it. It does not.
- Misclassification as an independent contractor, which puts the worker outside the statute entirely if it holds up.
- Off-the-clock work — pre-shift setup, post-shift cleanup, working through an unpaid meal break, answering messages at home.
- Miscalculated regular rate, where bonuses or shift differentials were left out of the overtime base.
- Retaliation for complaining, which is separately actionable.
The Equal Pay Act lives inside the FLSA and prohibits paying men and women differently for equal work.
Where the right comes from
The private right of action is express, and it carries the collective mechanism inside it:
An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.
The same subsection sets the condition that defines these cases:
No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.
What a plaintiff has to prove
For an overtime or minimum-wage claim:
- An employment relationship existed. "Employ" is defined as "to suffer or permit to work" — a deliberately broad phrase that can reach joint employers and defeat a contractor label.
- Coverage applies, either because the business is an enterprise engaged in commerce meeting the annual revenue threshold, or because the individual employee is engaged in commerce.
- The employer failed to pay the required minimum wage, or failed to pay the overtime premium for hours past 40 in a workweek.
The workweek is the unit. Averaging two weeks together to avoid overtime does not work.
For an Equal Pay Act claim, the plaintiff shows unequal pay between sexes for jobs requiring equal skill, effort, and responsibility under similar working conditions. Intent is not an element, and no agency charge is required — a real advantage over pleading the same facts as sex discrimination under the employment-discrimination statute.
How long you have to file
Two years, extended to three years where the violation was willful. Willful means the employer knew its conduct violated the statute or showed reckless disregard for whether it did.
Each paycheck is a separate violation with its own accrual date, so the practical effect is a rolling two- or three-year lookback rather than a single cutoff.
Now the trap. In a collective action the limitations period keeps running for each individual until that person files a written consent with the court. Filing the case does not stop anyone else's clock. The tolling doctrine that protects absent class members in an ordinary class action does not apply here, because the statute requires opting in. Every week between the complaint and a worker's consent form is a week of wages falling off the back end of their claim.
What has to happen before you file
Nothing administrative. No agency charge, no exhaustion, no notice. That includes Equal Pay Act claims.
Two procedural points sit close enough to count:
- Opt-in consent. To join someone else's collective action you must file written consent. Miss it and you are not a party, are not bound, and get no tolling.
- Settlement approval. FLSA rights generally cannot be waived privately. Most courts require a settlement to be approved by the court or supervised by the Department of Labor, which makes quietly resolving these cases harder than it looks.
Who can be sued — and who cannot
Employers, defined broadly. Joint employment is a live theory — a staffing agency and the client business can both be on the hook.
Individuals with operational control can be personally liable. An owner or manager who controls pay practices is an "employer" under this statute. That is the opposite of the rule under Title VII, where individuals are never liable, and the contrast surprises people who assume employment law works one way.
States cannot be sued for damages by private plaintiffs. Sovereign immunity bars those actions in state and federal court alike, under Alden v. Maine. The Department of Labor can still act.
Common defenses
Exemptions — executive, administrative, professional, outside sales, computer, and a long tail of narrower ones. The employer bears the burden of proving an exemption applies.
Two decisions shape how that burden works. Exemptions get a fair reading rather than the grudging narrow construction courts once applied. And in E.M.D. Sales v. Carrera (2025) the Supreme Court held unanimously that the standard of proof is the ordinary preponderance of the evidence, rejecting the heavier clear-and-convincing standard one circuit had required.
Good faith, which comes in two forms: reliance on a written Department of Labor position can defeat liability outright, and a good-faith belief in compliance can persuade a court to withhold liquidated damages.
No coverage, not an employee, hours not worked.
What the claim pays
Unpaid wages or overtime, plus an equal amount as liquidated damages. The doubling is the default, not a bonus — the employer has to earn its way out of it by proving good faith and reasonable grounds.
Attorney's fees and costs are mandatory for a prevailing plaintiff. There is no matching route for a prevailing defendant, which is a large part of why these cases settle.
Equal Pay Act claims recover back pay and liquidated damages on the same pattern.
What people get wrong
"Salaried means exempt." No. Salary is necessary for most white-collar exemptions and never sufficient. The employee's actual duties control, and the job title is close to irrelevant.
"I signed a contract saying I'm a contractor." The label does not decide it. Courts look at the economic reality of the relationship.
"Filing the collective action protects everyone." No. Each person's clock runs until their own written consent is filed.
"I agreed to waive the overtime, so that's that." FLSA rights generally cannot be waived privately, and settlements usually need court or agency approval.
"I have to file an EEOC charge for an Equal Pay Act claim." No. That is one of the reasons to bring the claim under this statute.
"Comp time instead of overtime." Private employers generally cannot substitute time off for the overtime premium. The rules for public employers differ.
"My boss can't be personally liable." Under this statute, they can.
Where it came from
The FLSA passed in 1938, one of the last major pieces of New Deal legislation, and set the 40-hour week, the federal minimum wage, and restrictions on child labor.
The Portal-to-Portal Act of 1947 added the two- and three-year limitations periods and the good-faith defences, in response to a wave of claims for time spent walking to workstations. The Equal Pay Act arrived in 1963.
The opt-in collective action is the statute's structural oddity. It predates the modern class action rule by decades and was left in place when that rule was written, which is why federal courts run two entirely different aggregation systems side by side. The certification procedure for these collectives is itself now split: most circuits use a lenient two-step approach, while the Fifth and Sixth have replaced it with a stricter single inquiry. That divide is unresolved.
Common questions
How far back can I claim unpaid overtime?
Two years, or three if the violation was willful. Each paycheck is a separate violation, so the recovery is a rolling lookback rather than a single cutoff date.
Does joining a collective action stop my deadline from running?
No. Your limitations period keeps running until your own written consent is filed with the court. This is the single most costly misunderstanding in FLSA practice.
Does being paid a salary make me exempt from overtime?
No. A salary is required for most exemptions but never enough on its own. Your actual job duties decide it, and the employer has to prove the exemption applies.
Can I recover double what I am owed?
Usually. Liquidated damages equal to the unpaid wages are the default. The employer avoids them only by proving it acted in good faith with reasonable grounds to believe it was complying.
Do I need to file with an agency before suing?
No. The FLSA has no administrative exhaustion requirement, and neither does the Equal Pay Act.