When employees have been denied overtime pay, they often ask is how they go about pursuing their unpaid overtime? The federal statute governing unpaid overtime is the Fair Labor Standards Act (“FLSA”), which provides that “no employer shall employ any of its employees… for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate of which he is employed.” 29 U.S.C. § 207(a)(1).  “An employer who is armed with [knowledge that an employee is working overtime] cannot stand idly by and allow an employee to perform overtime work without proper compensation, even if the employee does not make a claim for the overtime compensation.” Newton v. City of Henderson, 47 F.3d 746, 748 (5th Cir.1995). The FLSA applies to non-exempt employees who are entitled to overtime pay. The FLSA does not require overtime pay for wok on Saturdays, Sundays, holidays, or regular days of rest, unless such overtime hours have been worked on those days. 

An employee that has been denied overtime pay, must first demonstrate a preponderance of the evidence that:

1. there existed an employer-employee relationship during the unpaid overtime periods claimed;
2. the employee engaged in activities within the coverage of the FLSA;
3. the employer violated the FLSA’s overtime wage requirements; and
4. the amount of overtime compensation due. Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 441 (5th Cir. 2005).

Once the employee has shown the above criteria, the burden of proof shifts to the employer to “come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the employee’s evidence.” Id.  Accordingly, the employer is tasked with the responsibility of making sure they keep accurate and up to date employee time keeping records.  Failure to do so allows employees to estimate their work days, including what they would have been paid for all their time. Often times, the employer may be claiming that the employee is exempt from overtime pay. If that is the case, the employer has the burden of showing the the employee falls within the claimed exemption. Samson v. Apollo Res., Inc., 242 F.3d 629, 636 (5th Cir. 2001).

Moreover, under the FLSA, there is an anti-retaliation provision that prohibits employers from retaliating or taking any negative action against the employee for filing suit. To establish a prima facie retaliation claim, the employee must prove that: 

1. he or she engaged in an activity that Title VII protects; 
2. employer carried out an adverse employment action; and 
3. a causal nexus exists between her protected activity and the employer’s adverse action. Chaney v. New Orleans Pub. Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir.1999). Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 441 (5th Cir. 2005). 

While a FLSA lawsuit may be intimidating, it is important for a worker with overtime questions to speak with an experienced FLSA attorney who understands the laws and regulations concerning unpaid overtime. If you believe you have been denied overtime pay, call attorney Josh Borsellino today at 817.908.9861 or 432.242.7118. Mr. Borsellino is an experienced unpaid overtime attorney that fights for the rights of workers. He offers free consultations and works on a contingency basis meaning that you owe him nothing unless there is a recovery. Call him today!