FLSA Overtime Rules

FLSA overtime rules are an important aspect of workplace knowledge for both employers and employees. As a general rule, the Fair Labor Standards Act (FLSA) requires an employer to pay a non-exempt employee overtime pay at the rate of one and one-half times the employee’s regular rate of pay for any hours worked over 40 in a given workweek.

The FLSA overtime rules clearly state that all time spent by an employee performing activities which are job-related is potentially “work time.” This includes the employee’s regular “on the clock” work time, plus “off the clock” time spent performing job-related activities (which benefit the employer). Potential work is actual work if the employer “suffered or permitted” the employee to do it. An employer suffers or permits work if it knows the employee is doing the work (or could have found out by looking), and lets the employee do it.

The FLSA overtime rules also state that with only a few exceptions, all time an employee is required to be at the premises of the employer is work time. All regular shift time is work time. This includes “breaks” (if there are breaks), and “nonproductive” time (for example, time spent by a receptionist reading a novel while waiting for the phone to ring). In addition, all time spent by an employee performing work-related activities that the employer suffers or permits is work time, whether on premises or not and whether “required” or not. Work done “at home” or at a place other than the normal work site is work, and the time must be counted. “voluntary” work is work, and the time must be counted.

FLSA Fair Pay overtime rules also allow for the employer to take an employee exemption for certain job positions so that they don’t have to pay overtime. All of the following requirements must be met for a position to be exempt from the FLSA overtime payment requirement:

– The position must be paid on a salary (not hourly) basis, except for certain computer employees. Being paid on a salary basis means that an employee is paid the same amount per workweek regardless of the hours the employee actually works.

– The position must be paid at least $455* per week, regardless of percent time worked: e.g. a half-time employee who is paid $454 per week and a full-time employee who is paid $454 per week are both nonexempt and entitled to overtime, regardless of their job duties, even though the full-time equivalent pay for the half time employee is actually $908 per week.

*New rules increasing this salary amount were set to go into effect on 12/1/16 but have been delayed by a lawsuit brought by several states. Please see this page for the latest updates.

While the FLSA overtime rules are mostly black and white, in the instance of travel there is some grey area. As a general rule, “home to work” and “work to home” travel time is not work time, and this is true even if the “commute” is longer than normal, to or from a different work site than normal, or the employee uses a company vehicle for the trips. This assumes that the employee is performing no other work activities while commuting.

Time spent by an employee writing a report is work time, even if it happens to occur while the employee is riding on a bus (or airplane) to or from work. Travel time which is “all in a day’s work” is work time. Usually, this means that travel time is work time if it occurs between when the employee first arrives at the first work site and before the employee leaves the last work site at the end of the work day. The first work site is the place where the employee first performs work activities. For example, an employee who travels to the office, picks up equipment, then goes to a work site to perform the day’s activities is working from the time s/he first arrives at the office. Picking up the equipment needed to do the day’s activities is the first work activity of the day, and therefore the office is the first work site of the day.

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