Overtime basics under the FLSA

The Fair Labor Standards Act requires most employees to be paid one and one-half times their regular rate for hours worked beyond 40 in a workweek. That sentence contains four terms with precise meanings, and most overtime disputes turn on one of them.

The workweek

The unit is a fixed, recurring period of 168 hours: seven consecutive 24-hour periods. It need not match the calendar week and can start on any day and hour, but once set it stays set. Overtime is computed week by week. Hours cannot be averaged over two weeks, so 50 hours one week and 30 the next produce 10 overtime hours, not zero. Federal law has no daily overtime: 12 hours on Monday and nothing the rest of the week is 12 hours at straight time.

Hours worked

Overtime is owed on hours worked, which the regulations define to include all time an employee is required to be on duty or at a prescribed workplace, and all time they are permitted to work even if not asked to. Short rest breaks count; bona fide meal periods usually do not. Travel between home and work does not count; travel during the workday does. Paid time off, holidays and sick leave are not hours worked and do not count toward the 40 unless the employer chooses to count them.

The regular rate

The premium is one and one-half times the regular rate, not the base hourly rate. The regular rate is total compensation for the week divided by total hours worked, and it must include nondiscretionary bonuses, shift differentials, commissions and most other payments for work. It excludes a short statutory list: discretionary bonuses, gifts, paid leave, expense reimbursements, premium pay already paid for overtime or for weekend work, and certain benefit contributions. A worker paid $20 an hour plus a $100 production bonus in a 50-hour week has a regular rate higher than $20, and the overtime premium is computed on that higher figure. Part 778 of the regulations works through the cases.

For salaried non-exempt employees the regular rate is the salary divided by the hours the salary is intended to cover; the rules for fluctuating workweeks are specific and are in the same part.

What federal law does not require

It does not require premium pay for work on weekends, nights or holidays as such; only hours over 40 trigger it. It does not limit the number of hours an adult may work in a week. It does not require overtime to be paid at double time. It does not allow private employers to substitute compensatory time off for overtime pay; public agencies may, under conditions in the statute. And it does not apply to employees who are exempt; see exempt versus non-exempt.

State additions

States may require more. DOL’s state minimum wage table carries a “premium pay after designated hours” line for each state, which the minimum wage pages here reproduce. California requires time and one-half after eight hours in a day and double time after twelve; Alaska, Colorado and Nevada have daily thresholds; a few states set a weekly threshold other than 40 for some employers. Where state and federal rules differ, the employee is entitled to whichever is more protective.

Reading wage data with overtime in mind

The OEWS wages on the occupation pages are straight-time rates and exclude overtime premiums. For occupations where long weeks are common, actual earnings exceed the published annual figure; see what the mean wage hides.

Beyond this summary

Which employees are covered, whether a particular bonus is discretionary, and how to compute the rate for piecework or multiple pay rates are questions the regulations answer in detail and this page does not. The sister site FastCalc has an overtime pay calculator that applies the arithmetic to figures you enter; the sister site FastGuide covers how to recover unpaid overtime.