Am I Entitled to Overtime Pay?

Learn when employers are required to pay overtime to their workers.

By , Attorney

If you're thinking about taking a job that could require you to work more than 40 hours per week, or your current employer is asking you to do so, you should understand the rules regarding overtime pay.

The good news is that federal and state laws require most employers to pay overtime to employees who work more than 40 hours per week. Generally, employees are entitled to their normal hourly wage plus a 50% premium for every additional hour worked. This is commonly known as "time and a half."

There are, however, some exceptions. For starters, not all employers are required to pay overtime. In addition, not all types of employees are entitled to overtime pay even if the employer must pay overtime to other members of its staff.

If you're unsure whether you should be paid overtime, the starting point is the Fair Labor Standards Act (FLSA). State law might also come into play if you are not covered by the FLSA.

The Fair Labor Standards Act (FLSA) Overtime Rules

When it comes to regulating wages and hours in the workplace, the most significant federal law is the FLSA. The FLSA applies to full-time and part-time workers in the private sector as well as those employed by federal, state, and local governments. Employment issues regulated by the FLSA include:

  • minimum wage
  • overtime pay
  • record keeping
  • hours worked, and
  • child labor standards.

The FLSA is broad but it doesn't regulate every employer. As a result, some employers are not required to pay overtime. Likewise, not all employees are entitled to overtime pay. Employees who are not subject to the overtime requirement are called "exempt" employees.

To determine whether you should be paid overtime, you must first figure out whether you work for a covered employer. If your employer is regulated by the FLSA, the next question is whether you are a covered or exempt employee.

Employers Covered by the FLSA

Most employers are regulated by the FLSA and are required to pay overtime. Covered employers include:

  • federal, state, and local governments
  • companies with annual gross sales of at least $500,000
  • businesses that care for the sick, aged, or mentally ill
  • preschools, elementary schools, and secondary schools
  • schools for gifted children and mentally and physically disabled children, and
  • businesses engaged in interstate commerce.

Generally, the term "interstate commerce" refers to the act of doing business between different states. Your employer is engaged in interstate commerce if the business handles, sells, produces, or works on goods or materials that come from or go to another state. Your employer is also engaged in interstate commerce if the business or its employees communicate between state lines for a business purpose. The overwhelming majority of employers engage in interstate commerce and thus are subject to the FLSA.

In most cases, an employer that is regulated by the FLSA must pay overtime to at least some of its employees. The next step is to determine which employees are also covered by the FLSA.

FLSA Exempt Employees

Generally, the FLSA applies to all employees who work for a covered employer unless the employee is exempt from the FLSA's regulations. Those who are exempt from both the general wage and overtime provisions of the FLSA include:

  • salaried executive, administrative and professional employees
  • independent contractors
  • volunteer workers
  • outside salespeople
  • computer system analysts, programmers, and software engineers who earn at least $27.63 an hour or $684 a week
  • employees of seasonal amusement or recreational businesses
  • employees of some organized camps or religious and nonprofit conference centers that operate less than seven months per year
  • employees of certain small newspapers
  • workers engaged in fishing operations
  • seamen on international vessels
  • small farm workers
  • some switchboard operators, and
  • casual domestic babysitters and those who provide companionship to those who are unable to care for themselves.

In addition, there are some workers who are exempt from the overtime requirement but who may be protected by other aspects of the FLSA. This includes:

  • rail, air, and motor carrier workers
  • employees who buy poultry, eggs, cream, or milk in their unprocessed state
  • workers who sell cars, trucks, farm implements, trailers, boats, or aircraft
  • employees who service cars, trucks, or farm implements
  • certain employees of broadcasting stations
  • local delivery drivers
  • agricultural workers
  • taxi drivers
  • domestic service workers who lives in the employer's home, and
  • movie theater employees.

If your job duties fall within one of the categories listed above, you are not entitled to overtime pay under federal law. However, you should contact your state's department of labor to determine whether overtime pay is available under state law.

"White Collar" Exemptions

The white collar exemption is another name for the salaried administrative, executive, and professional employee exemption listed above.

A salaried worker is one who receives a predetermined amount of compensation each pay period. An employee is not salaried if the employer can dock the employee's pay as a disciplinary measure or for failing to perform in accordance with expectations. If the employee's pay is docked based on the quality or quantity of work performed, the employee is not exempt and is entitled to overtime pay. There are some exceptions, however, for such things as docking an employee for "personal day" absences pursuant to a paid vacation or sick leave policy. Docking the employee's pay in these situations will not impact the employee's exempt status.

Generally, under this exemption, salaried workers who use discretion and independent judgment in discharging certain types of job duties and meet a specific weekly salary threshold are not entitled to overtime pay.

If you are concerned that this exemption applies to you, the analysis comes down to two issues: your job duties and your salary. If you perform any of the following job duties, you will be exempt from receiving overtime pay provided you earn at least $684 per week (equivalent to a salary of $35,568 per year):

  • Administrative duties: Describes non-manual or office work that directly relates to management or business operations.
  • Executive duties: Includes managing a department within a company, hiring and firing employees, or regularly supervising at least two workers.
  • Professional and creative duties: Refers to work that requires advanced knowledge, an advanced degree, or talent in a recognized or artistic field.

Seek Legal Help

The federal and state departments of labor are good resources for general questions and concerns you might have about overtime pay. However, for more specific questions about your situation, you should contact an experienced labor and employment attorney.

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