Labor and Employment

Overtime Pay and Your Job

By Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley

Talk to a Local Wage And Hour Law Attorney

If you work more than 40 hours in a week—or, in a few states, more than eight hours in a day—you may be entitled to overtime pay. Not all employees are eligible to earn overtime, however: It depends on your job duties and responsibilities. Read on to learn who is legally entitled to overtime, how overtime is calculated, and whether your employer can force you to work overtime.

Who Is Entitled to Overtime?

Most employers must comply with the federal Fair Labor Standards Act (FLSA), which regulates employee wages and hours, including overtime. Employers are subject to the FLSA if they have at least $500,000 in annual gross sales. Less profitable employers are also covered if they do business in “interstate commerce,” which the law defines very broadly. Generally, only the smallest and most local employers don’t have to follow the FLSA (and even these employers may be subject to state overtime laws).

An employer that is covered by the FLSA must pay overtime to all employees, unless they fit into an exception to the law (called “exemptions”). Most employees are entitled to earn overtime; they are called “nonexempt” employees. Exempt employees—those who do not earn overtime—include:

  • employees who work on small farms
  • newspaper deliverers
  • seamen and fishermen
  • employees of seasonal amusement and recreational businesses (like county fairs or ski resorts)
  • outside salespeople (employees who customarily and regularly work off site, taking orders or selling products or services)
  • certain computer professionals (including software engineers and programmers) who earn at least $27.63 per hour, and
  • administrative, professional, and executive employees.

This last category, called the “white collar” exemptions, applies only to employees who:

  • are paid at least $455 per week (the Department of Labor, which interprets the FLSA, has proposed regulations that would increase this amount to $970 per week)
  • are paid on a salary basis (that is, the employee receives the same set amount per week, without deductions for variations in the amount or quality of the employee’s work), and
  • perform work that fits within the applicable exemption.

The last requirement means that the employee must perform job duties that fall within the administrative, professional, or execution exemption. To qualify under the executive exemption, for example, an employee must manage either the whole company or a recognized subdivision or department, must regularly supervise at least two full-time employees, and must have the authority to hire and fire or have significant input as to these decisions. For more on eligibility and other requirements, see White Collar Exemptions Under the FLSA.

How Is Overtime Calculated?

If you are nonexempt and you work overtime, you are entitled to overtime pay. You have worked overtime if you work more than 40 hours a week, under the FLSA and the overtime laws of most states. A few states (including California) have a daily overtime standard, which means you are entitled to overtime if you work more than eight hours in a day.

For the extra hours you work, you are entitled to the overtime rate: an extra 50% of your regular hourly rate. This is why overtime is sometimes called “time-and-a-half.” For example, if you earn $10 per hour, your overtime rate would be $15 per hour. If you earn commissions and performance-based bonuses, these amounts should be included in determining your regular hourly rate.

Mandatory Overtime

Some employees are itching to work overtime—or at least, to earn the extra money that overtime offers. Others value their free time more than extra pay. So, if your boss asks you to work overtime, can you decline?

Your employer can require you to work overtime, unless a contract prohibits it from doing so. It would be quite rare for an individual employee to have an employment contract that protects the employee from having to work overtime. However, some employers are subject to union contracts (called “collective bargaining agreements,” or CBAs) that might regulate how much overtime employees can be required to work. If you’re a union employee, your union representative should be able to tell you whether your CBA addresses overtime issues.

Questions for Your Attorney

  • Has my employer properly classified me as exempt from overtime?
  • How do I calculate my hourly rate of pay?
  • How soon does my employer have to pay me for overtime I work?
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