Why Isn’t My Employer Paying Overtime?

When you work over 40 hours a week, you expect to be compensated fairly for your time. After all, the Fair Labor Standards Act (FLSA) exists to ensure that workers are paid at least time and a half for every hour they work beyond the standard 40-hour workweek. 

Yet, far too often, employers skirt around overtime pay, whether through misclassification, manipulation of timesheets, or misunderstood pay structures like "Chinese overtime."

If you’ve been asking yourself, “Why isn’t my employer paying overtime?”—you’re not alone, and you may be entitled to back pay and other damages.

If you suspect your employer has intentionally avoided paying you what you’re owed, contact Morgan & Morgan today for a free, no-hassle case evaluation to learn more about your legal options. It’s free, fast, and easy.

Are You Owed Overtime? What the Law Says

Under the Fair Labor Standards Act (FLSA), non-exempt employees must receive overtime pay for any hours worked over 40 in a single workweek. The standard overtime rate is 1.5 times an employee’s regular rate of pay, often referred to as "time and a half."

Here’s what that means in real terms:

• If you normally make $20/hour, your overtime rate should be $30/hour.
• If you work 45 hours in a week, those five extra hours should be paid at that $30 rate.

However, employers sometimes claim that you’re not entitled to overtime for a variety of reasons—some legal, some not.

Common (and Often Illegal) Reasons Employers Avoid Paying Overtime

Misclassifying Employees as Exempt

One of the most common tactics employers use to avoid paying overtime is misclassification. The FLSA outlines who is considered “exempt” from overtime pay, typically:

• Certain executives
• Administrative professionals
• Professional employees (like doctors or lawyers)
• Outside salespeople
   

To legally qualify as exempt, employees must meet specific duties tests and earn at least $684 per week (as of 2020). Just calling someone a “manager” or paying them a salary doesn’t automatically make them exempt. If you’re performing non-exempt duties, like running a cash register or stocking shelves, you may be owed overtime even if you’re salaried.

Requiring “Off-the-Clock” Work

Another common violation is pressuring employees to work before clocking in or after clocking out. This might include:

• Answering emails
• Attending mandatory meetings
• Cleaning up after a shift
• Completing reports at home
   

If your employer knows (or should know) that you’re performing work off the clock, you are legally entitled to be paid for that time, and it counts toward overtime.

Averaging Hours Across Weeks

The FLSA defines overtime on a weekly basis—not biweekly, monthly, or averaged. Some employers try to average hours across multiple weeks to dodge overtime:

“You worked 30 hours last week and 50 this week. That’s 80 total, so no overtime!”

That’s illegal. In this example, the employee is entitled to 10 hours of overtime for the second week.

Misusing Comp Time in the Private Sector

In the public sector, employees may be given “compensatory time” instead of overtime, where extra hours worked one week are given as paid time off in another. However, private employers are not allowed to offer comp time instead of overtime pay.

If you work in the private sector, your employer must pay you overtime in dollars and not future vacation days.

Implementing Confusing Pay Structures, Like “Chinese Overtime”

Some employers use less common pay structures that can reduce overtime rates, like Chinese overtime, also known as fluctuating workweek pay. This method is legal in some cases but often misapplied or used to underpay workers.

Let’s take a closer look.

What Is Chinese Overtime?

“Chinese overtime,” or fluctuating workweek overtime, is a pay structure that allows employers to pay a fixed salary for fluctuating hours, with a reduced overtime premium.

The term "Chinese overtime" can be considered offensive and culturally insensitive. It's a misnomer that falsely associates a specific method of overtime calculation with Chinese labor practices. However, if you hear this term, this is what it’s referring to.

Here's how it works:

• You agree to a fixed weekly salary that covers all hours worked.
• Your hours may vary week to week.
• For any hours worked over 40, you are paid half your regular hourly rate as overtime, not 1.5 times.

Here’s an example:

• Your weekly salary: $800
• Week 1: You work 40 hours → Hourly rate = $800 / 40 = $20/hr → No overtime
• Week 2: You work 50 hours → Hourly rate = $800 / 50 = $16/hr
  • Overtime pay = $16 / 2 = $8/hr for 10 hours = $80
  • Total pay = $800 + $80 = $880

So instead of earning $30/hour for overtime (as you would under time-and-a-half), you're only getting $8/hour.

Is It Legal?

“Chinese overtime” is legal only if:

• The employee is non-exempt but paid a fixed salary.
• The number of hours worked truly fluctuates from week to week.
• The salary is meant to cover all hours worked, not just 40.
• There’s a clear mutual understanding between employer and employee.
  
   

Red Flags That Suggest Chinese Overtime Is Being Misused:

• Your hours don’t fluctuate, and you always work more than 40.
• Your “fixed salary” only covers 40 hours, not all hours.
• You never agreed to this pay method.
• Your employer uses this method to pay less than minimum wage for overtime.
   

In these cases, you may have a claim for unpaid wages.

What Should I Do if I’m Not Getting Overtime Pay?

If you suspect you're being unfairly denied overtime, there are steps you can take to protect yourself and build your case.

1. Document Everything

Keep records of your hours, especially if your employer doesn’t. Save pay stubs and emails that mention your schedule or pay. Note any requests to work off the clock or skip breaks.

 

2. Ask Your Employer

Sometimes unpaid overtime is a result of confusion or error—not malicious intent. It’s okay to raise the issue directly and ask for clarification.

That said, if your employer is evasive, dismissive, or retaliates. That’s a sign that something’s not right.

3. Consult an Employment Attorney at Morgan & Morgan

Wage and hour laws are complex, and employers often bet on the fact that you don’t know your rights. But we do.

At Morgan & Morgan, we’ve helped thousands of workers recover millions in unpaid wages. Whether your employer misclassified you, improperly implemented “Chinese overtime,” or asked you to work off the clock, we can help you fight back.

Can I Be Fired for Asking About Overtime?

It is illegal for your employer to retaliate against you for asserting your right to fair pay. That includes:

• Firing you
• Cutting your hours
• Demoting you
• Harassing or threatening you

If you’ve faced retaliation for asking about overtime or reporting a wage violation, you may be entitled to additional compensation, and we can help you hold your employer accountable.

Industries Where Overtime Violations Are Common

Some industries see higher-than-average wage violations, particularly those with low oversight, high turnover, or a reliance on hourly workers. These include:

• Hospitality (hotels, restaurants, bars)
• Retail
• Warehousing and logistics
• Construction
• Healthcare (especially home health aides and nursing assistants)
• Call centers
• Delivery services

If you work in one of these fields, it’s especially important to know your rights and monitor your hours.

How Much Could You Be Owed?

Overtime violations can add up fast. If your employer has been underpaying you for months or even years, you may be entitled to:

• Back pay (unpaid wages)
• Liquidated damages (equal to the amount of back pay)
• Interest
• Legal fees

In many cases, you can recover double what you’re owed.

Here’s an example:

• You were underpaid $100 per week for one year, totaling to $5,200
• Add liquidated damages = $5,200
• Total owed: $10,400

Multiply that by a team of affected coworkers, and your employer could be on the hook for hundreds of thousands of dollars.

You Work Hard. You Deserve to Be Paid Fairly.

If your employer is denying you the overtime pay you’ve rightfully earned, it’s time to stand up for yourself. You don’t have to do it alone,  and you don’t have to be afraid.

Let Morgan & Morgan help you fight for what’s yours.

When it comes to fighting wage theft, experience matters. At Morgan & Morgan, we’re proud to be For the People, not big corporations or shady employers. 

As the largest personal injury law firm in the country with law offices in every state, we have the size, resources, and nationwide reach to take on a case of any size. Our army of over 1,000 trial-ready attorneys isn’t afraid to take a case all the way to the courtroom if necessary, and we fight for the maximum compensation for our clients. In fact, over our 35 years of experience, we have recovered over $25 billion.

And the best part? We don’t get paid unless you win. That’s right; the Fee Is Free®.

Hiring one of our lawyers is easy, and you can get started in minutes with a free case evaluation.