Loading
Expert Witness Insights by Area of Expertise
9 min read
Areas of Expertise :
Wage And Hour Disputes, Employment, Wage Loss, Economic Damages, Statistics
Published Date:
Last Modified Date:
Unpaid overtime claims in 2026 can involve employee classification, off-the-clock work, regular-rate calculations, recordkeeping, and differing federal and state wage requirements. This article explains the evidence and potential damages involved in wage-and-hour disputes and how expert witnesses can analyze payroll data, timekeeping records, exemption issues, and damages models.
Unpaid overtime disputes often start small. An employee may spend a few minutes logging into a system, working through part of a meal break, closing out after a shift, or performing work through messages after hours. Over time, those minutes can add up.
This guide explains how overtime claims arise under the Fair Labor Standards Act (FLSA) and state wage laws, what evidence matters, and how expert witnesses can help attorneys evaluate payroll data, exemption issues, time records, and damages.
Under the FLSA, covered nonexempt employees generally must receive overtime pay at one and one-half times their regular rate of pay for hours worked over 40 in a workweek.
The regular rate is not always the employee’s base hourly rate. It may include nondiscretionary bonuses, commissions, shift differentials, and other compensation unless a recognized exclusion applies. If a payroll system uses only the base rate, the overtime calculation may be too low.
A salary does not automatically make an employee exempt from overtime. A professional-sounding title does not decide the issue either.
For most white-collar exemptions, including the executive, administrative, and professional categories, the employer must show that the employee meets three separate requirements: the salary basis test, the salary level test, and the duties test. The salary basis test generally requires that the employee be paid a predetermined, fixed amount that is not reduced because of variations in the quality or quantity of work. The salary level test requires that the amount meet the applicable minimum threshold. The duties test looks at what the employee actually does day to day. Some exemptions, such as outside sales, have no salary requirement at all, so the right analysis depends on the specific exemption being claimed.
Actual work matters more than a job title. For example, an employee called a “manager” may still be nonexempt if the role mainly involves routine tasks with limited authority.
Common exemptions include executive, administrative, professional, outside sales, and certain computer employee exemptions. The correct analysis depends on the exemption claimed, the employee’s compensation, and the employee’s actual day-to-day work.
As of 2026, the federal salary threshold for most executive, administrative, and professional exemptions is $684 per week, or $35,568 per year. The highly compensated employee threshold is $107,432 per year, including at least $684 per week paid on a salary or fee basis.
The Department of Labor’s 2024 overtime rule raised the salary threshold in two stages. The first increase, from $684 to $844 per week, took effect on July 1, 2024. On November 15, 2024, a federal district court vacated the entire 2024 rule nationwide, which undid the July 2024 increase and blocked the planned January 2025 increase. In May 2026, the Department of Labor issued a technical amendment removing the vacated 2024 rule language from the Code of Federal Regulations and restoring the 2019 regulatory text.
Employers should still check state law. Some states set higher exemption thresholds than federal law, so meeting the federal threshold alone may not be enough.
Overtime
Payroll
Timekeeping
Wage and Hour
Damages Calculations
Employee Misclassification
Recordkeeping
Unpaid overtime disputes often start small. An employee may spend a few minutes logging into a system, working through part of a meal break, closing out after a shift, or performing work through messages after hours. Over time, those minutes can add up.
This guide explains how overtime claims arise under the Fair Labor Standards Act (FLSA) and state wage laws, what evidence matters, and how expert witnesses can help attorneys evaluate payroll data, exemption issues, time records, and damages.
Under the FLSA, covered nonexempt employees generally must receive overtime pay at one and one-half times their regular rate of pay for hours worked over 40 in a workweek.
The regular rate is not always the employee’s base hourly rate. It may include nondiscretionary bonuses, commissions, shift differentials, and other compensation unless a recognized exclusion applies. If a payroll system uses only the base rate, the overtime calculation may be too low.
A salary does not automatically make an employee exempt from overtime. A professional-sounding title does not decide the issue either.
For most white-collar exemptions, including the executive, administrative, and professional categories, the employer must show that the employee meets three separate requirements: the salary basis test, the salary level test, and the duties test. The salary basis test generally requires that the employee be paid a predetermined, fixed amount that is not reduced because of variations in the quality or quantity of work. The salary level test requires that the amount meet the applicable minimum threshold. The duties test looks at what the employee actually does day to day. Some exemptions, such as outside sales, have no salary requirement at all, so the right analysis depends on the specific exemption being claimed.
Actual work matters more than a job title. For example, an employee called a “manager” may still be nonexempt if the role mainly involves routine tasks with limited authority.
Common exemptions include executive, administrative, professional, outside sales, and certain computer employee exemptions. The correct analysis depends on the exemption claimed, the employee’s compensation, and the employee’s actual day-to-day work.
As of 2026, the federal salary threshold for most executive, administrative, and professional exemptions is $684 per week, or $35,568 per year. The highly compensated employee threshold is $107,432 per year, including at least $684 per week paid on a salary or fee basis.
The Department of Labor’s 2024 overtime rule raised the salary threshold in two stages. The first increase, from $684 to $844 per week, took effect on July 1, 2024. On November 15, 2024, a federal district court vacated the entire 2024 rule nationwide, which undid the July 2024 increase and blocked the planned January 2025 increase. In May 2026, the Department of Labor issued a technical amendment removing the vacated 2024 rule language from the Code of Federal Regulations and restoring the 2019 regulatory text.
Employers should still check state law. Some states set higher exemption thresholds than federal law, so meeting the federal threshold alone may not be enough.
Many overtime cases do not come from one obvious mistake. They often grow out of everyday payroll, scheduling, classification, or recordkeeping practices that were never reviewed closely enough.
Misclassification happens when an employer treats an employee as exempt even though the salary, duties, or job functions do not meet the legal test.
This issue often appears when a workplace relies too heavily on job titles. A title such as “manager,” “coordinator,” or “analyst” may sound exempt, but the actual work matters more.
Off-the-clock work often happens in small blocks of time. Examples can include pre-shift setup, post-shift closing tasks, system log-in time, work during unpaid breaks, and after-hours work through email, text messages, or workplace messaging platforms.
These claims usually turn on what work was performed, how long it took, and whether the employer knew or should have known about it. Under the FLSA’s “suffer or permit” standard, an employer may be responsible for off-the-clock work even if it did not expressly authorize it, when management knew or should have known the work was being performed.
Overtime errors can occur when payroll systems calculate overtime using only the employee’s base hourly rate. If nondiscretionary bonuses, commissions, shift differentials, or certain incentive payments should have been included, the overtime rate may be too low.
In litigation, attorneys often need to know not only what the employee was paid, but also how the payroll system treated each type of compensation.
Meal-break records can create problems when they do not match what happened at work. A meal-break record may show 30 minutes even when employees kept working, were not fully relieved of duty, or were interrupted.
These claims often require a review of time records, written policies, supervisor practices, system activity, and employee testimony.
Poor records rarely make an overtime problem disappear. They often make the dispute harder to defend.
The FLSA requires covered employers to keep required payroll and time records, especially for nonexempt employees. Weak timekeeping systems, inconsistent edits, missing approvals, or unclear audit trails can make it difficult to explain what happened and why.
Federal law sets the floor, but state law may require more. Multistate employers should compare federal, state, and sometimes local rules before classifying employees or calculating damages.
California generally requires overtime after eight hours in a workday and after 40 hours in a workweek, subject to specific rules and exceptions. California also requires double time after 12 hours in a workday and after eight hours on the seventh consecutive day of work in the same workweek.
California also has separate meal-period rules, which can affect wage-and-hour disputes when employees are not provided compliant meal periods or when records do not reflect what happened during the workday.
New York sets higher salary thresholds for the executive and administrative exemptions than federal law does. In 2026, those thresholds are $1,275.00 per week for employees in New York City, Long Island, including Nassau and Suffolk counties, and Westchester County, and $1,199.10 per week for employees in the rest of the state. New York does not set a separate salary floor for the professional exemption, so the federal threshold of $684 per week applies to that category.
Washington’s 2026 overtime exempt salary threshold is $1,541.70 per week, which equals about $80,168.40 per year. This is much higher than the federal threshold.
For employers in these states, exemption decisions should account for both salary requirements and actual job duties.
Overtime cases often depend on several records working together, not one document alone. The key questions are what work was performed, when it happened, and how the employee was paid.
Useful evidence may include:
Some of these materials are required payroll or timekeeping records. Others may be reviewed in litigation when they help show when work occurred, whether time was changed, or how pay was calculated. This is especially important in cases involving meal-break records, remote work, hybrid schedules, or digital timekeeping systems.
When overtime goes unpaid, damages usually start with the unpaid wages. In FLSA cases, employees may also seek an equal amount as liquidated damages, plus attorneys’ fees and court costs, unless a court finds a legally recognized basis to limit liquidated damages.
To avoid or reduce liquidated damages, an employer generally must clear two hurdles: showing it acted in good faith, and showing it had reasonable grounds for believing its conduct was not a violation of the FLSA. Meeting only one of those two requirements is not enough.
The usual limitations period is two years, but it may extend to three years for willful violations. Depending on the state, claims may also involve remedies for missed meal periods or other state-specific violations.
Damages calculations can become complicated when the case involves multiple worksites, changing pay rates, bonuses, commissions, incomplete records, or different state-law rules.
In wage-and-hour litigation, payroll data rarely explains itself. Time edits, badge records, system logs, bonus payments, and damages calculations may all point in different directions unless someone connects them clearly.
Expert witnesses may help attorneys and courts understand:
Expert testimony is more vulnerable when the method is weak, the expert does not address data limits, or the opinion does not fit the issues in the case. Under Rule 702, a court evaluates four things before allowing expert testimony: whether the expert’s specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue; whether the opinion rests on sufficient facts or data; whether the expert used reliable principles and methods; and whether those methods were reliably applied to the facts of the case.
The 2023 amendment to Rule 702 clarified that the proponent of expert testimony must show by a preponderance of the evidence that the rule’s admissibility requirements are met, reinforcing a standard that many courts had been applying inconsistently.
That reliability standard matters in overtime cases. A damages model that assumes the same off-the-clock work across every employee without testing the records may be easier to challenge under Rule 702. Strong experts explain their assumptions, identify data gaps, test the available records, and avoid overstating what the evidence can prove.
What is the federal overtime rule in 2026?
Covered nonexempt employees generally must receive overtime at one and one-half times their regular rate for hours worked over 40 in a workweek.
Does a salary mean an employee is exempt from overtime?
No. A salary is only one part of the analysis. Actual job duties and applicable salary requirements still matter.
What is the current federal salary threshold for white-collar exemptions?
As of 2026, the federal threshold for most executive, administrative, and professional exemptions is $684 per week, or $35,568 per year.
Can bonuses affect overtime pay?
Yes. Nondiscretionary bonuses and certain other payments may need to be included in the regular rate when calculating overtime.
How long does an employee have to file an FLSA overtime claim?
The usual limitations period is two years. It may extend to three years if the violation is willful.
Why do expert witnesses matter in overtime cases?
Expert witnesses can help explain payroll data, timekeeping records, exemption evidence, regular-rate calculations, and damages models, especially when the case involves large data sets, incomplete records, or class and collective action issues.
Many overtime cases do not come from one obvious mistake. They often grow out of everyday payroll, scheduling, classification, or recordkeeping practices that were never reviewed closely enough.
Misclassification happens when an employer treats an employee as exempt even though the salary, duties, or job functions do not meet the legal test.
This issue often appears when a workplace relies too heavily on job titles. A title such as “manager,” “coordinator,” or “analyst” may sound exempt, but the actual work matters more.
Off-the-clock work often happens in small blocks of time. Examples can include pre-shift setup, post-shift closing tasks, system log-in time, work during unpaid breaks, and after-hours work through email, text messages, or workplace messaging platforms.
These claims usually turn on what work was performed, how long it took, and whether the employer knew or should have known about it. Under the FLSA’s “suffer or permit” standard, an employer may be responsible for off-the-clock work even if it did not expressly authorize it, when management knew or should have known the work was being performed.
Overtime errors can occur when payroll systems calculate overtime using only the employee’s base hourly rate. If nondiscretionary bonuses, commissions, shift differentials, or certain incentive payments should have been included, the overtime rate may be too low.
In litigation, attorneys often need to know not only what the employee was paid, but also how the payroll system treated each type of compensation.
Meal-break records can create problems when they do not match what happened at work. A meal-break record may show 30 minutes even when employees kept working, were not fully relieved of duty, or were interrupted.
These claims often require a review of time records, written policies, supervisor practices, system activity, and employee testimony.
Poor records rarely make an overtime problem disappear. They often make the dispute harder to defend.
The FLSA requires covered employers to keep required payroll and time records, especially for nonexempt employees. Weak timekeeping systems, inconsistent edits, missing approvals, or unclear audit trails can make it difficult to explain what happened and why.
Federal law sets the floor, but state law may require more. Multistate employers should compare federal, state, and sometimes local rules before classifying employees or calculating damages.
California generally requires overtime after eight hours in a workday and after 40 hours in a workweek, subject to specific rules and exceptions. California also requires double time after 12 hours in a workday and after eight hours on the seventh consecutive day of work in the same workweek.
California also has separate meal-period rules, which can affect wage-and-hour disputes when employees are not provided compliant meal periods or when records do not reflect what happened during the workday.
New York sets higher salary thresholds for the executive and administrative exemptions than federal law does. In 2026, those thresholds are $1,275.00 per week for employees in New York City, Long Island, including Nassau and Suffolk counties, and Westchester County, and $1,199.10 per week for employees in the rest of the state. New York does not set a separate salary floor for the professional exemption, so the federal threshold of $684 per week applies to that category.
Washington’s 2026 overtime exempt salary threshold is $1,541.70 per week, which equals about $80,168.40 per year. This is much higher than the federal threshold.
For employers in these states, exemption decisions should account for both salary requirements and actual job duties.
Overtime cases often depend on several records working together, not one document alone. The key questions are what work was performed, when it happened, and how the employee was paid.
Useful evidence may include:
Some of these materials are required payroll or timekeeping records. Others may be reviewed in litigation when they help show when work occurred, whether time was changed, or how pay was calculated. This is especially important in cases involving meal-break records, remote work, hybrid schedules, or digital timekeeping systems.
When overtime goes unpaid, damages usually start with the unpaid wages. In FLSA cases, employees may also seek an equal amount as liquidated damages, plus attorneys’ fees and court costs, unless a court finds a legally recognized basis to limit liquidated damages.
To avoid or reduce liquidated damages, an employer generally must clear two hurdles: showing it acted in good faith, and showing it had reasonable grounds for believing its conduct was not a violation of the FLSA. Meeting only one of those two requirements is not enough.
The usual limitations period is two years, but it may extend to three years for willful violations. Depending on the state, claims may also involve remedies for missed meal periods or other state-specific violations.
Damages calculations can become complicated when the case involves multiple worksites, changing pay rates, bonuses, commissions, incomplete records, or different state-law rules.
In wage-and-hour litigation, payroll data rarely explains itself. Time edits, badge records, system logs, bonus payments, and damages calculations may all point in different directions unless someone connects them clearly.
Expert witnesses may help attorneys and courts understand:
Expert testimony is more vulnerable when the method is weak, the expert does not address data limits, or the opinion does not fit the issues in the case. Under Rule 702, a court evaluates four things before allowing expert testimony: whether the expert’s specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue; whether the opinion rests on sufficient facts or data; whether the expert used reliable principles and methods; and whether those methods were reliably applied to the facts of the case.
The 2023 amendment to Rule 702 clarified that the proponent of expert testimony must show by a preponderance of the evidence that the rule’s admissibility requirements are met, reinforcing a standard that many courts had been applying inconsistently.
That reliability standard matters in overtime cases. A damages model that assumes the same off-the-clock work across every employee without testing the records may be easier to challenge under Rule 702. Strong experts explain their assumptions, identify data gaps, test the available records, and avoid overstating what the evidence can prove.
What is the federal overtime rule in 2026?
Covered nonexempt employees generally must receive overtime at one and one-half times their regular rate for hours worked over 40 in a workweek.
Does a salary mean an employee is exempt from overtime?
No. A salary is only one part of the analysis. Actual job duties and applicable salary requirements still matter.
What is the current federal salary threshold for white-collar exemptions?
As of 2026, the federal threshold for most executive, administrative, and professional exemptions is $684 per week, or $35,568 per year.
Can bonuses affect overtime pay?
Yes. Nondiscretionary bonuses and certain other payments may need to be included in the regular rate when calculating overtime.
How long does an employee have to file an FLSA overtime claim?
The usual limitations period is two years. It may extend to three years if the violation is willful.
Why do expert witnesses matter in overtime cases?
Expert witnesses can help explain payroll data, timekeeping records, exemption evidence, regular-rate calculations, and damages models, especially when the case involves large data sets, incomplete records, or class and collective action issues.
Overtime
Payroll
Timekeeping
Wage and Hour
Damages Calculations
Employee Misclassification
Recordkeeping
Expert Witness Insights by Area of Expertise
Expert Witness Insights by Area of Expertise