Eployment Law Indianapolis The DeBrota Law Firm LLC

Unpaid Wages and Overtime

Unpaid Wages and OvertimeThe Fair Labor Standards Act

According to the Fair Labor Standards Act of 1938 (FLSA), there are only two types of employees: 1) those exempt from the FLSA’s mandate to receive overtime wages; and, 2) those not exempt from overtime wages. If you work more than 40 hours in one week, you may be entitled to overtime pay. Ms. DeBrota handles many unpaid overtime claims and can help you determine whether or not you are a non-exempt employee and help you recover the wages that your employer may owe you. Complete one of our free initial case review or consultation forms to determine if you are owed overtime pay.

Exempt Employees

Under the FLSA, an exempt employee is anyone who is both paid on salary and performs the duties of an exempt employee. Most exempt duties fall under three different job categories: Executive, Professional, and Administrative.


If you regularly supervise two or more full-time employees and you are “in charge” of a unit or sub-unit of the employer, you may be classified as an Executive and be exempt from earning overtime. The specific details of your job will determine if you are an Executive or if you qualify for one of the several exceptions to this general rule. Some examples are:

  • If you are an “assistant manager” and your manager is always present, even though you supervise two or more employees, you may be entitled to overtime pay because your manager is ultimately responsible for management.
  • If you are a “line manager” or other similar title that does not grant you supervisory or managerial authority, then you may not be exempt from overtime pay.
  • If you spend most of your time performing the same work as the employees you supervise, you may be entitle to overtime pay, even if you have some managerial responsibilities.
  • If you do not supervise two or more full-time employees, but you supervise multiple part-time employees, you may be exempted from overtime pay if you supervise 80 hours of employee time or more in one week.


If your job requires you to use advanced, typically highly-specialized, training or education, you may be exempt from overtime wages. Such professions include doctors, engineers, teachers, accountants, and attorneys.

However, these are not the only professions exempted. If your work requires you to regularly make decisions using good judgment, discretion, and your highly-advanced training, you may be exempt from earning overtime wages.


If you perform office work that supports the business and requires you to make business decisions, you may fall under the administrative category of an exempt employee. Payroll administrators are a good example of an exempt employee, whereas a secretary or receptionist would not be exempt from earning overtime pay. But, secretaries and receptionists typically do not exercise judgment to make decisions which affect the business.

The key to determining whether you fall into this category is whether or not you make decisions which effect the overall operation of the business and not just a single executive or professional. Other examples of employees who may be exempt are Director of Human Resources, Corporate Buyer, and Bookkeeper.

Other Exempt Employees

If you work for your family in agricultural production, you are not entitled to overtime pay. (You might not be entitled to minimum wage pay, either.) If you perform work for a labor organization and are not employed by that labor organization (for instance, picketing for your union during a strike) you are not entitled to overtime wages. However, if you are employed by the labor organization, such as an agent or administrative assistant, then you may be non-exempt and entitled to overtime wages.

Non-Exempt Employees

If you do not fit any of the categories listed in the “Exempt Employees” section, you may be entitled to overtime wages. Generally, if you work more than 40 hours in one week, each hour over 40 should be paid as “time-and-one-half.” For instance, if you make $8 per hour, you should make $12 per hour, after your regular 40 hours of work in one week.

Hourly employees are not the only ones who are entitled to overtime wages. If you are a salaried employee that does not perform “exempt” duties then you, too, may be entitled to overtime wages. However, the amount of overtime pay to which you are entitled may be calculated differently, using “base pay” and half-time pay, depending upon the circumstances.

If you believe your employer has wrongly denied you overtime pay, you may be able to recover double the unpaid overtime, plus attorney fees and costs. However, the statute of limitations, or time limit for you to act, could affect your chances to recover unpaid overtime, if you do not file a complaint within the allowed timeframe. If you believe you are owed overtime pay, you should contact an attorney immediately.

What Qualifies As Overtime

The FLSA states that an non-exempt employee “receives compensation for his employment in excess of [40 hours] at a rate not less than one and one-half times the regular rate at which he is employed.” However, under the FLSA, not everything qualifies as work. For example, paid vacation days do not count towards the initial 40 hours worked in one week.

Compensatory Time

Under the FLSA, overtime worked does not equal compensation time gained. If you are a non-exempt employee work more than 40 hours in one week and your employer offers you an equal or greater amount of time off in compensation, you should immediately contact The DeBrota Law Firm LLC. Compensatory time off for overtime hours worked is not allowed under the FLSA, and you may be entitled to the overtime wages that your employer is withholding.

Unpaid Overtime Recovery Period

The FLSA allows recovery for work performed beginning two years prior to a complaint being filed in court. You are allowed to recover for an additional year if you can show the employer knowingly disregarded the law regarding overtime pay. This statue of limitations is an absolute rule and can very rarely be extended.

The longer you wait to file your claim the harder your wages will be to recover and the less you will be able to recover. Please contact us as soon as you determine your employer has failed to pay you the overtime pay you have earned, so The DeBrota Law Firm LLC can help you recover your unpaid wages.

You may be able to recover double your unpaid overtime, plus attorney fees. If there are other employees who your employer is also cheating out of overtime pay, they may be able to join in your case. However, you must act within the recovery period.

Do these laws apply to you?

Summary of Indiana Wage Laws

  • Employers are required to pay employees at least semi-monthly or bi-weekly. Payments should include all wages earned to a specific date that is not more than ten (10) days prior to the date of payment.
  • Employers are permitted to make deductions from an employee paycheck only if:
    • There is an agreement in writing between the employer and employee, the agreement is signed by the employee and employer and the employee has the right to revoke.
    • A copy of the deduction agreement must be delivered to the employee within ten (10) days of execution.
    • Only certain categories of deductions are allowed, including but not limited to: insurance premiums, charitable contributions, payments to an employee’s direct deposit
  • Employers are not permitted to fine an employee and deduct the amount of the fine from the employee’s pay.
  • Employers may not deduct the cost of a mandatory uniform from an employee’s paycheck.
  • Employers must compensate an employee for time spent at mandatory meetings.
  • Employers must pay at least the minimum wage of $5.15 per hour.
  • Tipped employees should also be paid a total amount that is at least the minimum wage. Employers are required to pay an hourly base of $2.13 per hour. If the employee is not compensated at a rate equal to the minimum wages after adding any tips, the employer must pay the employee the difference.
  • With a few exceptions, employers must pay overtime pay to non-supervisory employees who work over 40 hours a week.
  • When an employee ends employment (voluntarily or involuntarily) he/she should:
    • Receive a final check by midnight of the next regularly scheduled pay day.
    • Be paid for any accrued vacation pay, subject to the employer’s personnel policy to the contrary.
  • If an employee must file a claim against the employer to obtain wages earned, he/she may recover lost wages, treble liquidated damages and attorney fees.
  • The Indiana Division of Wage & Hour Division may be able to help an employee, if an employer has failed to pay wages due. Such claims will be investigated by the Division unless:
    • The claim exceeds $800.00.
    • The employee has not yet asked the employer for the wages .
    • It is more than one year since the employee left employment
    • The person working was an independent contractor, not an employee.
    • The employee has already filed a complaint in civil court.
    • The employee did not perform the work in Indiana.
    • The employer does not have facilities in Indiana.
  • If a claim does not meet these criteria, the employee must still file notice of the claim with the Wage and Hour Division and obtain legal representation to pursue the claim in court.
  • Indiana Department of Labor – Wage & Hour Division:
    402 West Washington Street, W195 Indianapolis, Indiana 46204
    (317) 232-2673

Under Indiana law, unpaid wage claims are subject to a two year statute of limitiations, or recovery period. If you do not file a complaint in court within this timeframe, you will be forever barred from doing so. Contact Amy DeBrota if your current or former employer owes you wages.

" All labor that uplifts humanity has dignity and importance and should be undertaken with painstaking excellence."
Dr. Martin Luther King

The DeBrota Law Firm LLC, an Indianapolis employment law firm, represents clients throughout Indiana, including all central Indiana counties and the cities of Indianapolis, Bloomington, Elkhart, Franklin, Kokomo, Lafayette, New Albany, Muncie, Terre Haute, Fort Wayne, Hammond, Richmond, Marion and Anderson. The DeBrota Law Firm LLC represents employees with claims for unpaid wages or overtime, unpaid commissions, breach of contract, misclassified job titles, and violations of the Fair Labor Standards Act, as well as other types of employment related legal claims.