Overtime Pay: Who is Supposed to Get It?

The provisions for overtime pay in the Fair Labor Standards Act (FLSA) is summarized in just a few words by the U.S. Department of Labor: “An employer who requires or permits an employee to work overtime is generally required to pay the employee premium pay for such overtime work.” The idea may be simple, but the implementation of overtime pay policy is seemingly filled with as many explanations and exemptions as there are types of work. Although state overtime laws are very different, the FLSA remains the foundation for overtime law in the United States which has several areas under which most of the common overtime problems occur.

* Employees covered by FLSA (often called non-exempt workers) must receive at least time and one-half their regular pay rate for hours worked in excess of 40 hours in a workweek.
* Averaging of hours over two or more weeks in order to avoid overtime payment is not allowed.
* FLSA does not limit mandatory overtime which is the number of hours employees aged 16 and older may work in a single workweek.
* Payment for overtime must normally be paid on the regularly scheduled payday for the pay period in which the wages were earned.
* The regular pay rate for non-exempt employees must be at least the minimum wage.
* Earnings may be based on salary, commission, or piece-rate.
* Overtime wages may not be waived even if both employer and employee are in agreement. An employer’s announcement that no overtime work will be permitted, or unless authorized in advance does not impair an employee’s right to overtime compensation.
* Private sector employees may only grant comp time as a reward; it may not replace overtime pay or the minimum wage.
* Employers are NOT required to pay overtime, under federal law:
o For work on Saturdays, Sundays, or holidays.
o To employees on standby unless employees are not permitted to use their standby time for personal pursuits.

FLSA Classification is defined under the FairPay Overtime Rules.

Non-exempt Employees

Those who are protected under the FLSA include non-management, blue-collar employees as well as “white collar” employees who are hourly or salaried but earn less than $455* per week (Update: $684/week as of 1/1/2020) who work for the following types of companies or organizations:

1. Engaged in interstate commerce
2. Gross $500,000 or more each year
3. Federal, state, or local government agencies
4. Hospitals and other medical institutions which care for the sick, aged, or mentally-ill
5. Educational institutions

Exempt Employees

For the most part, the following types of employees are exempt from (not eligible for) overtime pay.

1. White collar executive, administrative, and professional employees who earn a guaranteed salary in excess of $455* per week (Update: $684/week as of 1/1/2020) who regularly exercise discretion and independent judgment in significant matters.
2. Employees who earn more than $100,000 per year (Update: $107,432 as of 1/1/2020) who also regularly perform the one or more of the exempt duties of executive, administrative, or professional employees.
3. Specific computer professionals who earn more than $455* (Update: $684/week as of 1/1/2020) in weekly salaries or $27.53 per hour depending on their specific job duties.

Job titles are irrelevant for determining an employee’s FLSA classification. Though there are exceptions, eligibility is based upon occupations, wages or salaries, and job duties.

* The Department of Labor under the Obama Administration increased this salary amount to $913 per week effective 12/1/2016; however, this increase was blocked by a court ruling.  The Trump Administration has instead only increased the minimum salary to $684 per week, effective 1/1/2020. The prior salary limit was $455/week.  Please see this page for the latest updates.

Because of the complexities of employment and overtime pay law, you should consult with a knowledgeable overtime lawyer like Michael Lore to determine if you might have a valid overtime case against your employer. If you fill out our Case Evaluation Form as completely as you can, we will gladly help you decide if you might have a viable case.