Jun 03, 2024
There's no limit on the number of hours employees age 16 and older may work in any workweek. The FLSA doesn't require overtime pay for work on Saturdays, Sundays, holidays or regular days of rest, unless overtime is worked on such days.
But what is a workweek? An employee's workweek is a fixed and regularly recurring period of 168 hours — seven consecutive 24-hour periods. A workweek doesn't have to coincide with the calendar week; it may begin on any day and at any hour of the day. Averaging hours over two or more weeks is not permitted.
Pay for vacations, sick days or personal days is not covered by the FLSA, nor does the FLSA talk about double time, which are agreements between an employer and employee.
Who is eligible for overtime pay?
An employee's eligibility for overtime pay is based on employee classification — exempt or nonexempt. Nonexempt employees must be paid at least the minimum wage for all hours actually worked and the appropriate overtime premium when they work more than 40 hours in a workweek. States may have additional obligations, so you should check on those.
An exempt employee typically works in a professional, executive or administrative position and meets the following three requirements:
These employees are called exempt because they are not entitled to overtime pay.
What is an exempt employee?
Let's delve into the details of the exempt categories:
Other employees who are exempt from overtime pay requirements might include outside sales executives, certain skilled computer professionals, certain commissioned employees at retail stores or service establishments, employees at seasonal amusement or recreational establishments, workers at certain small newspapers or small farms, seamen employed on foreign vessels, and employees engaged in fishing operations, newspaper delivery or babysitting. Auto, truck, trailer, farm, boat and aircraft salespeople employed by nonmanufacturing establishments are likewise exempt.
Paying overtime
Employers covered by the FLSA are required to pay the applicable overtime premium to nonexempt employees even if the work resulting in overtime wasn't authorized. However, employers are allowed to implement a policy prohibiting unauthorized overtime.
Some smaller businesses that don't meet the specifications covered by the FLSA still might have obligations under a state's overtime law, as well as an obligation to pay overtime to nonexempt employees.
An employee can refuse to work overtime (Herman Melville's story "Bartleby, the Scrivener" may come to mind), but they should be mindful that in at-will employment states they can be fired for refusing an employer's request.
The risk involved for not paying overtime can be substantial — you could be required to pay back wages, fines and possibly the employee's legal fees. Employers should consult legal counsel and their state labor department.
Normally, overtime pay earned in a workweek is paid on payday.
More about overtime
The current Final Rule on Overtime has been in effect since Jan. 1, 2020. When that rule was implemented, it made 1.3 million American workers newly eligible for overtime.
The Department of Labor has announced that a new rule on overtime is expected to be released in April. (It was proposed on Aug. 30, 2023.) The new rule would restore and extend overtime protections to 3.6 million salaried workers. It would guarantee overtime pay for most salaried workers earning less than $1,059 per week (about $55,000 a year).
The DOL regards the update to overtime regulations as a way to put overtime pay into the pockets of more than a million working Americans, bringing a commonsense approach to offering consistency and certainty for employers — as well as clarity and prosperity for American workers.
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