Wages & Overtime

Employees covered by the Fair Labor Standards Act must receive overtime pay for hours worked in excess of 40 in a workweek at a rate not less than time and one-half their regular rates of pay (1.5x). There is no limit on the number of hours employees work in any workweek.

Overtime requirements apply on a workweek basis. An employee's workweek is seven consecutive 24-hour periods. It need not coincide with the calendar week but may begin on any day and at any hour of the day. Averaging of hours over two or more weeks is not permitted. Normally, overtime pay earned in a particular workweek must be paid on the regular payday for the pay period in which the wages were earned.

An employee’s regular rate of pay cannot be less than the minimum wage. An employee’s regular rate of pay does not include amounts paid for expenses incurred on the employer's behalf, premium payments for overtime work, discretionary bonuses, and payments for vacation, holidays, or sick leave. An employee’s regular rate of pay is calculated by dividing the total pay for employment (except for the exclusions noted above) in any workweek by the total number of hours actually worked.

Overtime Pay May Not Be Waived: The overtime requirement may not be waived by agreement between the employer and employees. An agreement that only 8 hours a day or only 40 hours a week will be counted as working time also fails the test of FLSA compliance. An announcement by the employer that no overtime work will be permitted or that overtime work will not be paid for unless authorized in advance also will not impair the employee's right to compensation for overtime hours that are worked.

When state law differs from the federal Fair Labor Standards Act, an employer generally must comply with the standard most protective to employees.

Employers may try to avoid minimum wage and overtime requirements by treating employees as independent contractors or as subject to some other exemption such as professional, administrative, or executive exemptions when, in fact, no exclusion or exemption applies.

To qualify for the executive employee exemption, all of the following tests must be met:

The employee must be compensated on a salary basis at a rate not less than $684 per week;

The employee’s primary duty must be managing the enterprise or a customarily recognized department or subdivision of the enterprise;

The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent and

The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees must be given particular weight.

To qualify for the learned professional employee exemption, all of the following tests must be met:

The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684* per week;

The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;

The advanced knowledge must be in a field of science or learning; and

The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

To qualify for the outside sales employee exemption, all of the following tests must be met:

The employee’s primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and

The employee must be customarily and regularly engaged away from the employer’s place or places of business.