employment lawyers nj

New Jersey Unpaid Overtime Attorneys

Generally speaking, nearly all employees that are paid by the hour are entitled to overtime. Overtime violations are common among hotel and restaurant workers and any other employees whose hours must adjust according to customer behavior. Examples of unpaid overtime violations include if your employer:

  • Requires you to work before clocking in, after clocking out, or during an unpaid lunch break. 
  • Automatically deducts time from your pay for lunch breaks, regardless of whether you take the break or not.
  • Mandates you to attend company meetings without compensating you.
    • This includes safety meetings, or security protocols.
  • Does not compensate you for on-call time.
  • Fails to pay you for time spent driving between meetings, appointments or other locations during the workday.
  • Expects you to work at home without compensation. 

Many people falsely believe that salaried employees and independent contractors are exempt from overtime. This is not always true. Unfortunately, far too many employers misclassify their employees in order to avoid their legal responsibilities to pay their employees fairly. 

If you believe you have not received the overtime compensation you deserve, the New Jersey employment law attorneys at Schall and Barasch can offer you guidance.

The New Jersey State Wage Payment Law dictates the time, manner, and mode of payment. Nonexempt employees that work over 40 hours in a workweek must be paid 1.5 times their regular rate for each hour in excess of 40 hours.


You must determine if your company is covered by the federal Fair Labor Standards Act (FLSA). Most companies are. This is a law that sets federal wage and hours rules. Businesses must comply with the FLSA if they meet the following criteria:

  • They have $500,000 or more in annual sales.
  • They engage in “interstate commerce.”
    • This could include making phone calls to or from another state, sending mail out of state, or handling goods that will go to, or come from another state.

Exempt vs. Nonexempt

If you believe your employer owes you overtime pay, you also need to determine whether you are a non-exempt employee. Do not rely on your employer to give you an accurate answer as to what type of employee you are. Some employers will classify any job as an “exempt” position if they think they might get away with it. This is called employee misclassification and it is unfortunately too common.  

Usually an employee’s classification status depends on:

  • What their job responsibilities and duties are.
  • The scheme in which they are paid (e.g. salary, hourly + tips, commission).
  • How much they are paid.

In order to be exempt from receiving overtime, the employee must satisfy three requirements:

  • They must make at least $684 per week (as of 1/1/2020).
  • They are paid on a salaried basis.
  • Their job requires them to perform “exempt” duties.

There are three categories of exemptions:

  • Executive
    • This applies to department heads with hiring and firing duties, presidents, heads of  major divisions, or general managers.
  • Administrative
    • Administrators include payroll directors, controllers, personnel directors, department heads, general managers, chief financial officers, head buyers, or head dispatchers.
  • Professional
    • Creative professionals, writers, physicians, registered nurses, pharmacists, dentists, teachers, artists, attorneys, CPAs, and others.

In order to be exempt, your primary duty must fit into one of the above categories. This means that you spend more than 50% of your work time doing this duty. In addition, your weekly compensation must be at least $684. Still, there are many gray areas with respect to job classification. If you are unsure if one of these categories applies to you, speak with an employment law attorney. 


If your job is classified as exempt, it means that one or more of the Fair Labor Standards Act does not apply to you. When this act was passed, many types of employees were purposefully excluded. This is due in part to lobbying efforts by industries with strong motives to quash employee rights to fair compensation. If you are unsure about your job classification, speak to an employment law attorney. The partners at Schall and Barasch keep current with all aspects of employment law in both New Jersey and the United States in general. They will be able to help you determine whether or not you are owed overtime compensation. 

A common trick employers use to avoid paying their employees overtime is to misclassify non-exempt employees as exempt. Employers will falsely classify an employee as exempt and pay them a salary, doing so to avoid having to pay overtime. If the employee ends up working more than 40 hours in a week, the employer will refuse to pay overtime wages, claiming that they do not need to. Misclassifying employees as exempt results in substantial wage theft of employees in New Jersey. 

Your company may certainly try to fire you for filing an unpaid overtime lawsuit, but it would be foolish to do so. A company  not legally permitted to retaliate against you for filing a claim against it. If your employer terminates you after you asserted your right to unpaid overtime, it may be engaging in wrongful termination.

In some cases, yes. An employer can require an employee to work overtime as long as it pays the appropriate overtime wages and does not violate existing employee-employer agreements. One of the exceptions to this rule exists with health care facilities. Health care facilities may only require overtime work as a last resort. They may not require employees to work overtime because they are understaffed. Before asking for employees to work overtime, they must first attempt to fill vacancies with volunteers, on-call employees, per-diem staff, and personnel staffed by temp agencies.

No. It is your employer’s responsibility to control and keep track of your hours. It is not your job to ask your boss for overtime pay or to warn them that you are exceeding 40 hours in a week. They create work schedules and must know the scope of upcoming projects. Your boss must pay you for overtime if they know or should have known that you were working overtime.

Be aware that your employer may still discipline you for working overtime without authorization.

You might be wondering, “why do I need an attorney to recover my unpaid wages or unpaid overtime?” The New Jersey Department of Labor and Workforce Development makes it very easy to file a complaint against your employer online. However, this Department lacks the resources and reach necessary to adequately protect all employees in the State. Complex employment laws are constantly changing. Enlisting the help of an experienced employment law attorney will ensure you meet all filing requirements. The New Jersey Department of Labor and Workforce Development has no direct financial motive to recover your unpaid overtime wages; we do. We work exclusively on employment law cases. Because of this, we give you the personal attention your unpaid overtime claim deserves.

New Jersey Unpaid Overtime Attorneys

The attorneys at Schall and Barasch have been fighting against unfair employers for long enough to know the common schemes they use to cheat workers of wages. After many years of experience in fighting these unfair practices, they have developed effective strategies in recovering unpaid overtime for their clients. Both Patricia Barasch and Richard Schall have earned reputations as tireless advocates for workers’ rights. Fill out their confidential, attorney-client privileged questionnaire or call them at 856.914.9200.

What Our Clients Say

Much gratitude to Schall & Barasch for outstanding representation in my Equal Pay Act case - for their willingness and courage to pursue justice against the State and its limitless resources. Their legal skills are unmatched. Besides an expert knowledge of employment law, they have the fortitude and determination required for years of intense litigation. Richard and Patricia remain unwavering and always professional in the face of highly contentious litigation.

Theresa Hubal

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