Checklist · Labor and Employment

Documenting and Pursuing an Unpaid Wage Claim: A Practical Checklist

29 U.S.C. § 211

Type: Checklist
Jurisdiction: National
Date: 2026-03-26
Topic: Labor and Employment

This checklist takes an unpaid wage problem from suspicion to resolution, in nine phases, beginning with the documentation habit that must start today rather than after a dispute arises. Phase 1 is what to record and preserve, and why a daily phone note shifts the burden under Mt. Clemens to an employer whose own records do not exist. Phase 2 is the classification analysis that decides most claims, testing actual duties against the regulations rather than testing the job title, and Phase 3 reconstructs hours from schedules, access logs, register records, and messages when no timesheet exists. Phase 4 computes the regular rate and the overtime actually owed week by week, including the nondiscretionary bonuses employers routinely omit from the rate. Phase 5 audits the tip credit, where failing any single condition forfeits the credit entirely, and Phase 6 adds the state layer, where break penalties and waiting time penalties frequently exceed the federal claim. Phase 7 covers the demand, the arbitration check, and the forum choice among the state agency, the federal agency, and private suit. Phase 8 covers retaliation protection and what to do if fired after complaining, and Phase 9 covers settlement and the court approval requirements unique to wage claims. Four model documents, a worked computation, a five-minute screen, and a ranked failure-mode list are included.

Documenting and Pursuing an Unpaid Wage Claim: A Practical Checklist

Labor and Employment > Wage and Hour | Published 26 March 2026 - Updated 7 July 2026 | UpLaw - uplaw.us

The most valuable act in a wage claim is a phone note made every day before anyone knew there was a dispute. Phase 1 is that habit, and everything else is arithmetic performed on it.

Keywords: documentation, classification, hours reconstruction, regular rate, tip credit, state layer, forum choice, retaliation

How to use this checklist

Nine phases. Each has - [ ] items and a Why it matters, and the traps note. A fictional case — a salaried assistant manager working fifty-four hours a week for $47,000 — runs throughout.

Doctrine is in Wage and Hour Law: A Comprehensive Guide to Minimum Wage, Overtime, Tips, and Recordkeeping. The narrative is The Hours You Worked and Were Not Paid For: How Wage Theft Actually Happens. The materials are in The Wage and Hour Claim Toolkit.

Phase 1 — Start documenting today

[ ] Photograph every schedule when it is posted.
[ ] Write down actual start and end times daily — a phone note is sufficient and is contemporaneous evidence.
[ ] Record every missed or interrupted meal break, with what interrupted it.
[ ] Record all off-the-clock time: pre-shift setup, closing, after-hours messages, required training.
[ ] Save every pay stub, and photograph any available only on a portal you could lose access to.
[ ] Save texts and messages about scheduling, coverage, and after-hours work.
[ ] Keep your job description and any classification or offer paperwork.
[ ] Keep any employee handbook and onboarding documents.
[ ] Note who else holds the same position.
[ ] Store all of it outside the employer's systems.

Why it matters, and the traps. 29 U.S.C. § 211 and 29 C.F.R. part 516 place the recordkeeping duty on the employer. Where it failed, Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) lets an employee carry the burden with evidence showing the amount and extent of work as a just and reasonable inference — and the employer cannot rebut it with records it never created.

Your own dated notes are exactly that evidence. This is why the habit matters more than any argument.

Phase 2 — The classification analysis

[ ] Determine whether you are treated as exempt or non-exempt.
[ ] If exempt: confirm the salary basis — a predetermined amount, not reduced for quality or quantity.
[ ] Look for improper deductions: partial-day absences, register shortages, breakage, disciplinary docking.
[ ] Write down what you actually do, hour by hour, for a typical week.
[ ] Identify your primary duty — the principal, main, most important one.
[ ] Test it against the executive, administrative, professional, computer, and outside sales criteria at 29 C.F.R. part 541.
[ ] For "executive": do you direct two or more employees, with real authority over hiring and firing?
[ ] For "administrative": do you exercise discretion and independent judgment on matters of significance?
[ ] If paid a day rate, note it is not a salary basis — Helix Energy Solutions Group, Inc. v. Hewitt, 598 U.S. 39 (2023).
[ ] If treated as a contractor, apply the economic reality factors, not the agreement.

Why it matters, and the traps. The title is not the job. Being called a manager, paid a salary, given a business card, or signing an acknowledgment decides nothing under 29 U.S.C. § 213.

Improper deductions can defeat the exemption for an entire classification, not just one employee.

Worked example. The assistant manager meets the salary basis and fails the duties test badly: her primary duty is stocking, cashiering, and cleaning; she directs no one with authority; corporate makes every significant decision. She is non-exempt and has been for two years.

Phase 3 — Reconstruct the hours

[ ] Collect any timesheets or clock records.
[ ] If none exist, reconstruct from: photographed schedules · store or facility opening and closing times · building access logs · register or system login records · text and email timestamps · dispatch or delivery records · your own notes.
[ ] Build a week-by-week table, not an average.
[ ] Add pre-shift and post-shift time.
[ ] Add interrupted meal breaks — unpaid only if completely relieved of duty.
[ ] Add compensable travel between worksites during the workday.
[ ] Add required training and meetings.
[ ] Add after-hours remote work under the "suffer or permit" standard of 29 U.S.C. § 203.
[ ] Check whether timeclock rounding is neutral or always favors the employer.
[ ] Apply the compensability rules at 29 C.F.R. part 785 and 29 C.F.R. part 790.

Why it matters, and the traps. Automatic meal deduction is the highest-risk practice in this field and usually the largest single item in a claim.

Rounding that always rounds one way is unlawful and looks like arithmetic rather than a policy.

A policy prohibiting after-hours work does not defeat the claim if the employer knew it was happening.

Phase 4 — Compute what is owed

[ ] Identify the workweek — a fixed, recurring 168-hour period.
[ ] For each week: total hours, and total straight-time compensation.
[ ] Include in compensation: nondiscretionary bonuses (attendance, production, safety, retention), shift differentials, commissions, on-call pay.
[ ] Allocate bonuses back across the weeks they cover and recompute.
[ ] Compute the regular rate for each week: total compensation ÷ total hours — 29 C.F.R. part 778.
[ ] Compute overtime at 1.5× the regular rate for hours over 40 — 29 U.S.C. § 207.
[ ] Subtract overtime already paid.
[ ] Check every week against the applicable minimum wage — 29 U.S.C. § 206.
[ ] Add back any unlawful deductions cutting into minimum wage — 29 C.F.R. part 531.
[ ] Apply the limitations period: two years, three if willful — 29 U.S.C. § 255.
[ ] Double it for liquidated damages — 29 U.S.C. § 216.

Why it matters, and the traps. Overtime is owed on the regular rate, not the base rate. Employers routinely pay on the base rate alone, underpaying every overtime hour by a small amount that compounds across a workforce.

Each payday is a separate violation, so the oldest weeks are continuously dropping out of the window. Delay is expensive and invisible.

The spreadsheet is the case. One row per workweek — hours, compensation, regular rate, overtime owed, overtime paid, difference — converts a dispute about fairness into an arithmetic proposition.

Phase 5 — Tip credit audit

[ ] Determine whether the employer takes a tip credit.
[ ] Confirm advance notice of the tip credit provisions was given.
[ ] Confirm you retain all tips except through a valid pool.
[ ] Check whether any manager or supervisor shares in the pool — categorically prohibited.
[ ] Check for non-tipped employees in the pool where the credit is taken.
[ ] Check for deductions from tips: breakage, walkouts, uniforms, credit card fees above actual cost.
[ ] Check time spent on non-tipped duties.
[ ] Confirm cash wage plus tips reaches minimum wage in every workweek.
[ ] Confirm overtime was computed on the full minimum wage, not the reduced cash wage.
[ ] Check whether your state permits a tip credit at all.

Why it matters, and the traps. Failing any single condition forfeits the credit entirely — making the employer liable for the full minimum wage for every hour worked, not merely the shortfall. That is why tip cases are frequently larger than they look.

Mandatory service charges are not tips. They belong to the employer and, if distributed, are wages included in the regular rate.

Phase 6 — Add the state claims

[ ] State and local minimum wage, which is usually higher.
[ ] Daily overtime, double time, and seventh-day premiums.
[ ] Meal and rest break penalties — commonly one hour of pay per day denied.
[ ] Final pay deadline and waiting time penalties.
[ ] Wage statement defects and per-violation penalties.
[ ] Broader deduction prohibitions.
[ ] The state limitations period — often three, four, or six years.
[ ] Any damages multiplier and mandatory fee-shifting.
[ ] Personal liability of owners, officers, or managers.
[ ] Any predictive scheduling ordinance.

Why it matters, and the traps. 29 U.S.C. § 218 preserves more protective law, and the state claim frequently exceeds the federal one.

Waiting time penalties on final pay are the most commonly violated wage provision in the country, the violation is unambiguous, and the penalty often exceeds the wages owed.

Personal liability matters most when the employing entity dissolves — which frequently happens once a claim is filed.

Phase 7 — Demand and forum

[ ] Check the handbook and onboarding papers for an arbitration agreement with a class or collective waiver.
[ ] Look for an unexercised opt-out window.
[ ] Decide the forum:
- State labor agency — free, no lawyer, best for final pay and straightforward hours.
- Federal wage and hour agency — investigates under 29 U.S.C. § 211, enforces under 29 U.S.C. § 217; note a supervised payment generally waives the claim and omits liquidated damages.
- Private suit — where liquidated damages and fee-shifting matter.
- Collective action — opt-in; each employee must file written consent, and the clock runs until they do.
[ ] Send a written demand with the spreadsheet attached.
[ ] Preserve everything before sending it.

Why it matters, and the traps. Check the arbitration agreement before choosing a route, because it may foreclose the collective action entirely.

The federal agency's supervised settlements are efficient and typically omit the doubling that makes private claims worthwhile.

Phase 8 — Retaliation

[ ] Put any internal complaint in writing, dated, and keep a copy outside the employer's systems.
[ ] Note that oral complaints to the employer are protected under 29 U.S.C. § 215 — but writing proves it.
[ ] Document any change after the complaint: schedule cuts, reassignment, discipline, discharge.
[ ] Record the dates of the complaint and of each adverse action.
[ ] Preserve performance reviews predating the complaint.
[ ] Note remedies include reinstatement, lost wages, and an equal additional amount — 29 U.S.C. § 216.
[ ] If discharged, file for unemployment — see Filing and Contesting an Unemployment Claim: A Practical Checklist.
[ ] Consider whether a discrimination claim also exists — see Filing and Pursuing an Employment Discrimination Charge: A Practical Checklist.

Why it matters, and the traps. The retaliation claim is frequently worth more than the wage claim and is easier to prove — a documented complaint followed closely by an adverse action does most of the work.

Phase 9 — Resolution

[ ] Understand that federal wage claims generally cannot be settled by private release alone — court approval or agency supervision is typically required.
[ ] Confirm any settlement addresses liquidated damages explicitly.
[ ] Confirm the period covered and that it does not release future claims.
[ ] Confirm treatment of attorney fees.
[ ] Confirm the tax characterization of wages versus liquidated damages.
[ ] For a collective, confirm the notice and opt-in mechanics.
[ ] Confirm the employer has corrected the practice going forward, not merely paid.
[ ] Keep the complete file.

Why it matters, and the traps. A settlement that pays back wages and leaves the misclassification in place produces the same claim next year.

Model documents

A. The weekly spreadsheet (column headings)

Week ending | Hours worked | Straight-time compensation | Bonuses allocated | Regular rate | OT hours | OT owed | OT paid | Difference | Notes

B. Internal written complaint

"I am writing to raise a concern about my pay. I am classified as exempt and paid a salary, but my primary duties are [describe], and I do not [supervise two or more employees with authority / exercise discretion on matters of significance]. I regularly work approximately [N] hours per week and have not received overtime. I am also frequently unable to take an uninterrupted meal break because [reason]. I am asking that my classification and hours be reviewed and that any unpaid overtime be paid. Please confirm receipt of this letter."

C. Records request to the employer

"Please provide copies of the following records concerning my employment: all time records; all pay records showing hours, rate, gross and net pay, and deductions; my job description; any document classifying my position as exempt or non-exempt; the schedules for the period [dates]; and any policy concerning meal periods, rounding, and overtime. These are records required to be maintained under 29 U.S.C. § 211 and 29 C.F.R. part 516."

D. Demand letter opening

"This is a demand for unpaid wages on behalf of [employee], employed as [position] from [dates]. Classification: [employee] was classified as exempt but her primary duty was [description], which does not satisfy 29 C.F.R. part 541. Hours: the attached schedule reconstructs [N] hours per week. Amount owed: the attached computation shows $[amount] in unpaid overtime for the period [dates], subject to doubling as liquidated damages under 29 U.S.C. § 216(b), plus attorney fees. We also assert [state] claims for [meal period penalties / waiting time penalties]. Please respond by [date]."

Failure modes, ranked

Keeping no contemporaneous record, and losing the Mt. Clemens inference.
Waiting, while paydays drop out of the window under 29 U.S.C. § 255.
Assuming a salary means exempt.
Assuming a contractor agreement settles the question.
Not counting interrupted meal breaks.
Computing overtime on the base rate instead of the regular rate.
Not auditing the tip credit conditions.
Ignoring the state layer, where penalties often exceed the federal claim.
Accepting a supervised settlement that waives the claim and omits doubling.
Complaining only orally, leaving the protected activity undocumented.
Not asking who else is affected.
Missing an arbitration agreement until after choosing a forum.

The claim, worked end to end

Facts. Assistant manager, $47,000 salary, fifty-four hours in a typical week, two years in the role. Duties: stocking, cashiering, unloading trucks, cleaning. No authority to hire, fire, discipline, set schedules, or change pricing. A district manager approves everything.

Phase 2 result. Salary basis satisfied; duties test failed. Primary duty is non-exempt retail work; no employees directed with authority; no discretion on matters of significance. Non-exempt for two years.

Phase 3 result. No timesheet exists — exempt employees do not clock in. Reconstructed from two years of photographed schedules, store opening and closing times, and a group text thread about coverage. Approximately fifty-four hours weekly, fourteen of them overtime.

Phase 4 arithmetic.

Step	Figure
Weekly salary	$903.85
÷ 40 hours = regular rate	$22.60
× 1.5 = overtime rate	$33.90
× 14 OT hours = weekly shortfall	$474.60
× 104 weeks (2 years)	$49,358
Liquidated damages — 29 U.S.C. § 216	$98,716
Plus attorney fees	—
If willful, three years — 29 U.S.C. § 255	materially more

Phase 5. Not applicable — no tipped work.

Phase 6 result. Her state requires a thirty-minute meal period with a one-hour penalty payment for each day denied. She worked through lunch on roughly four days a week for two years: about 416 days × $22.60 ≈ $9,400, on a longer state limitations period, plus wage statement penalties for pay stubs that never showed hours because she was classified exempt.

Phase 7 result. Nine other assistant managers share the identical classification. The individual claim becomes a collective action, which is what makes it economically viable — and the handbook contains no arbitration agreement, which is what makes the collective possible.

Phase 8. She puts the complaint in writing before anything else, dated, with a copy kept at home.

What made all of it possible. Not legal knowledge. She photographed the schedules.

The five-minute screen

When there is no time for the full checklist, these answers determine whether a claim exists.

Salaried or hourly? If salaried, go to question 2. If hourly, go to question 4.
What do you actually do most of the day? If the answer is the same work as the people you supervise, the exemption is probably invalid.
Do you supervise two or more people with real authority over hiring and firing, or make significant decisions independently? If no to both, likely misclassified.
Do you ever work through lunch? Almost always yes, and it is almost always unpaid.
Do you do anything before you clock in or after you clock out? Setup, closing, counting, changing.
Do you get any bonus that is announced in advance? If yes, it belongs in the regular rate and probably was not.
How many hours do you actually work in a typical week? Not scheduled — actually.
Were you paid everything within the deadline when you left? Waiting time penalties.
How many other people have your job? Collective action.
Did you sign anything at hiring you have not read since? Arbitration agreement.

Questions 2, 4, and 9 find most of the money.

Three sentences worth memorizing

"Write down what time you actually started and stopped." — today, before there is any dispute.

"The title is not the job." — exemption turns on the actual primary duty, not on a salary or a business card.

"Who else is in my position?" — the question that turns a claim too small to litigate into one that funds itself.

Documenting and Pursuing an Unpaid Wage Claim: A Practical Checklist

How to use this checklist

Phase 1 — Start documenting today

Phase 2 — The classification analysis

Phase 3 — Reconstruct the hours

Phase 4 — Compute what is owed

Phase 5 — Tip credit audit

Phase 6 — Add the state claims

Phase 7 — Demand and forum

Phase 8 — Retaliation

Phase 9 — Resolution

Model documents

A. The weekly spreadsheet (column headings)

B. Internal written complaint

C. Records request to the employer

D. Demand letter opening

Failure modes, ranked

The claim, worked end to end

The five-minute screen

Three sentences worth memorizing

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