How Do I Know if I Am Eligible for Overtime Pay?

What types of employees are entitled to overtime pay?

There are two types or categories of employees, exempt and non-exempt. Exempt employees are those who, due to their job duties, are not legally entitled to overtime and are, therefore, “exempt” from the laws regarding overtime pay. Non-exempt employees are those whose job duties do not fit within any of the exemptions provided for under the FLSA and are, therefore, entitled to overtime pay. The exemptions provided for under the FLSA are very limited and narrow, and the burden is placed on the employer to prove that any given employee or class of employees is not exempt.
  • Executive Exemption
  • Administrative Exemption
  • Professional Exemption
  • Computer Employee Exemption
  • Outside Sales Exemption
  • Highly Compensated Employees
  • Blue Collar Workers
  • Collective Bargaining Agreements

Can I be forced to work overtime?

The Fair Labor Standards Act (FLSA) does not limit the number of hours in a day or days in a week an employee may be required or scheduled to work, including overtime hours, if the employee is at least 16 years old. It only requires that covered, nonexempt employees be paid overtime pay at a rate of not less than one and one-half times their regular rate of pay after 40 hours of work in a workweek. Employers are free to set and enforce work schedules and the employees must comply with the schedule that is given to them. Employers can require employees to work overtime; however, they must properly pay non-exempt employees for any overtime hours they work. Please see the following for additional details:  

Can my employer make a ‘different deal’ with me for overtime?

In almost all cases the answer is, no. Employers and employees who are covered by the FLSA are not free to bargain for either a wage that is below the minimum wage, or for work in excess of 40 hours per week without paying a premium (typically time and a half) for overtime hours. Many employers wrongly believe that they can “cut a deal” with employees to avoid paying overtime rates – they cannot.  

What if I didn’t get permission or ask for the time I worked?

In most cases, failure to ask is not a defense for an employer in an FLSA case.  

What if I get “Comp Time” instead of overtime pay?

The granting of comp time instead of paying for overtime is not generally permitted, unless you work for the government.  

What if I agreed to work for a ‘flat salary’?

If an employee is covered by the FLSA, and most are, an employer cannot disregard an employee’s overtime hours even if the employee agreed to work for a fixed amount of pay, regardless of the number of hours actually worked. While the method of calculating the overtime due to the employee may vary, the employee is entitled to overtime pay for all hours over 40 worked during any given work week.  

What is “Chinese Overtime”?

If an employee is paid a fixed salary each workweek for hours that vary up and down from week to week, the employer may use an overtime calculation method called “fixed salary for fluctuating workweeks”. This is the method that some companies in the past used to refer to informally as “Chinese overtime”.  

What if I am a tipped employee?

If an employer elects to use the tip credit provision, it must inform the employee in advance and must be able to show that the employee receives at least the minimum wage when direct wages and the tip credit allowance are combined. If an employee’s tips combined with the employer’s direct wages do not equal the minimum hourly wage, the employer must make up the difference. Employees must retain all of their tips, except to the extent that they participate in a valid tip pooling or sharing arrangement. A tip pool can often be invalidated if tips are shared with managers, dishwashers, cooks, chefs or others who are not entitled to share in tips.  

What if I am an ‘independent contractor’?

Workers who are classified as independent contractors typically do not receive benefits such as healthcare and are generally not subject to workplace protections such as the Family and Medical Leave Act and the Americans with Disabilities Act. Employers in turn typically do not pay into worker’s compensation or unemployment insurance on behalf of those workers. Learn more about rights as an independent contractor here.  

What if I get a ‘bonus’ instead of overtime?

Unless your bonus is completely discretionary on the part of your employer, it must be included in determining your “regular rate” of pay.  

What if I didn’t report or ask for my overtime?

It probably does not matter. It is the employer’s obligation to control and document your work. If the employer does not want work to be done it must prohibit it. Failure to ask for overtime is usually not a defense, unless the employer has a requirement and/or policy that all time be reported and actually enforces it, or if an employee’s failure to report or ask means that the employer did not know (or have reason to know) work was being done.