Overtime

Hours worked beyond 40 per week, which must be compensated at 1.5× the regular rate for eligible (non-exempt) employees under federal law.

Overtime refers to hours worked in excess of 40 in a workweek. The Fair Labor Standards Act (FLSA) requires employers to pay non-exempt employees at least 1.5 times their regular rate of pay for all overtime hours. This is commonly called 'time and a half.' Exempt employees — typically salaried professionals meeting certain salary and duties tests — are not entitled to overtime pay regardless of how many hours they work.

Some states have more generous overtime rules: California requires overtime for hours over 8 in a single day, not just 40 in a week. Some states also mandate double time (2×) for very long shifts or seventh consecutive days worked. Employers sometimes misclassify employees as exempt to avoid overtime obligations — this is one of the most common wage and hour violations pursued by the Department of Labor.

The exempt/non-exempt classification is more nuanced than many employees understand. Being salaried does not automatically make you exempt. Exempt status requires meeting both a salary threshold — currently $684/week (about $35,568/year) federally — and a qualifying duties test. The duties tests have specific criteria for executive, administrative, professional, outside sales, and computer employee exemptions. Many employees are told they're exempt but actually fail the duties test, making them legally entitled to overtime even if they've never been paid for it.

For employers, overtime liability is retroactive. Employees who are misclassified as exempt can recover back overtime wages for the past two years (three years if the violation is willful), plus an equal amount in liquidated damages, plus attorney fees. Class action lawsuits on FLSA overtime misclassification are common and frequently result in seven-figure settlements. If you believe you've been misclassified, a consultation with an employment attorney is worth the time — many take these cases on contingency.

Exempt vs. Non-Exempt and Overtime

  • Non-exempt employees must receive overtime; exempt employees do not — being salaried alone doesn't determine exempt status.
  • Exempt status requires meeting both a salary threshold (currently $684/week federally) and a qualifying duties test.
  • Common exempt categories: executive, administrative, professional, outside sales, and certain computer employees — each with specific criteria.
  • If you're misclassified as exempt, you may be owed back overtime pay going back 2–3 years.
  • Employers cannot waive the FLSA — even if an employee agrees in writing not to receive overtime, the agreement is unenforceable.

Overtime in Practice: What to Watch For

  • Uncompensated work outside core hours — emails, calls, or prep work done off-the-clock still counts as compensable work time for non-exempt employees.
  • Off-the-clock work policies ('don't record more than 40 hours') are illegal for non-exempt employees — document actual hours regardless.
  • Comp time: private employers cannot legally give comp time instead of overtime pay to non-exempt employees under federal law — only government employers can.
  • Automatic meal break deductions: some employers deduct 30 minutes per shift; if you work through the break, it must be paid.
  • If you're asked to misrepresent your hours on a timesheet, refuse in writing — this creates documented evidence of a potential FLSA violation.

Example

A non-exempt warehouse employee earns $20/hour. In a week where she works 48 hours, she earns $800 for the first 40 hours and $240 for the 8 overtime hours ($20 × 1.5 × 8), totaling $1,040 before taxes. Her employer had previously tried to characterize her as exempt, but she doesn't meet the duties test — making the overtime legally required regardless of what her offer letter said.