Why are overtime laws important?
In 1890, just five years after William Le Baron Jenney invented the world’s first skyscraper, the average workweek for full-time US manufacturing employees was 100 hours. Divided over seven days, such a worker would have been putting in 14-hour shifts every day in the hopes of giving their family a decent life. Keep in mind, this was also a time before child labor laws were set in place, meaning thousands of children were also working long days, doing dangerous work.
While many states and cities made an effort to standardize the 40-hour workweek or even the eight-hour workday prior to 1938, they received pushback from employers. In fact, after the Illinois Legislature mandated an eight-hour workday in 1867, many employers refused to adapt, prompting workers to strike in such numbers. The day (May 1) became known as May Day.
The movement had been a long time coming. Twenty-one years prior, after President Ulysses S. Grant issued an 1869 proclamation giving government workers steady wages and an eight-hour workday, employees outside the public sector renewed their efforts, fighting for the eight-hour workday. A few private companies, including Ford Motor Companies, began to set the tone, giving workers five-day, 40-hour workweeks.
Finally, in 1938, the Fair Labor Standards Act (FLSA) was passed into law, limiting workweeks to 44 hours — later amended to 40 hours in 1940.
President Roosevelt sent the bill to Congress, saying, “Our nation so richly endowed with natural resources and with a capable and industrious population should be able to devise ways and means of insuring to all our able-bodied working men and women a fair day’s pay for a fair day’s work. A self-supporting and self-respecting democracy can plead no justification for the existence of child labor, no economic reason for chiseling workers’ wages or stretching workers’ hours.”
While the law that was passed ended up being quite a bit weaker than originally intended, it did limit child labor within the United States and introduce time-and-a-half overtime pay for certain jobs.
Read more about the history of the FLSA and the story behind its passage, from dol.gov.
What does the FLSA say about overtime?
Generally, all workers protected under the FLSA should receive one-and-a-half times their regular rate of pay for hours worked after 40 in a workweek (seven consecutive 24-hour periods).
To find out more about the FLSA, visit the US Department of Labor’s Wage and Hour Division website, then check out this two-page fact sheet for a brief overview of the FLSA’s overtime laws.
My state has its own overtime law. Should I follow that law or what’s under the FLSA?
In cases where state and federal overtime laws conflict, employers must defer to whichever law is more beneficial for the employee. That includes giving daily overtime, holiday pay, and even compensatory time when state law allows or mandates it, even though these are not currently mandated under the FLSA.
FLSA law states, “The FLSA provides minimum standards that may be exceeded, but cannot be waived or reduced. Employers must comply, for example, with any federal, state, or municipal laws, regulations, or ordinances establishing a higher minimum wage or lower maximum workweek than those established under the FLSA.”
Many states do not have their own overtime laws. Employees in these states, therefore, fall under the protections provided by the FLSA. They may be entitled to more benefits, however, (including fringe benefits like holiday pay) under their employer’s policies. While employees cannot “waive or reduce FLSA protections,” they can enter into collective bargaining agreements with their employer, where they can be granted additional overtime benefits.
I am exempt from receiving overtime under the FLSA but not under my state’s overtime law. Should I be receiving overtime?
Employers must defer to whichever overtime regulation is more beneficial for the employee. For instance, the FLSA excludes computer employees from earning overtime, but Pennsylvania law states overtime must be paid to computer employees. Therefore, computer employees in Pennsylvania must receive overtime.
The same rules apply when federal overtime laws are more generous than what’s listed under a state’s labor laws. For example, Pennsylvania’s minimum wage law states salary employees making less than $155 per week are eligible for overtime. Federal law states employees making a salary less than $455 per week are eligible for overtime. Thus, salary employees in Pennsylvania must be given overtime, even if they make $155 per week, so long as they don’t make more than $455 per week.
Should I be receiving holiday pay?
The FLSA does not require employers to pay time and a half for work done on holidays or weekends, so unless your state specifically requires employers to give holiday pay or overtime on weekends, you will earn normal wages on these days.
Can I be forced to work overtime?
Typically, yes. In most states, workers who refuse a scheduled or unscheduled shift can be punished and/or terminated, even if they have already worked 40 hours. Some states have mandatory rest periods or days of rest, but the majority of states do not have any such restrictions, so employers can schedule adult workers for any length shift and for as many days in a row as they like.
What’s the difference between non-discretionary and discretionary bonuses?
One common calculation that goes into determining a worker’s regular rate of pay is the non-discretionary bonus. These are bonuses that are promised or expected, such as regular attendance awards, commissions, gainsharing, or quarterly rewards for reaching certain goals. Because these are included in determining a worker’s regular rate of pay, they also factor into the amount of compensation a worker receives when earning overtime.
Discretionary bonuses are not taken into account when determining a worker’s regular rate of pay. Some examples of discretionary bonuses include prizes given to winners at a company picnic or holiday bonuses, which can vary depending on the year.
A bonus does not need to be given regularly in order to be non-discretionary. It only needs to be expected. The difference between a discretionary bonus given in recognition of a job well done and a non-discretionary bonus given for the same reason is the non-discretionary bonus was anticipated. The employee knew how much they would be receiving if they were to reach that goal. They were promised the bonus in exchange for achieving the goal. Let’s look at an example.
Paul tells his team if they reach 400,000 Instagram followers, the whole team will receive $100 bonuses on their next paycheck. When Paul’s team hits their goal, each person receives that $100 bonus, but because the bonus was non-discretionary or promised, their regular rate of pay also goes up. Everyone sees a boost, not only from the bonus but also in their regular paycheck, which shows higher wages for overtime and normal working hours.
Anna’s team is also hoping to reach 400,000 Instagram followers, but Anna doesn’t mention a bonus or incentive to her team. When they hit their goal, Anna decides to celebrate the achievement by giving each of her team leaders an unexpected one-time bonus of $100. Because the bonus was not anticipated by the team or integral to their success (in other words, the bonus wasn’t part of their motivation for hitting their goal), it is considered discretionary. It will be added to each person’s paycheck for the pay period but not calculated into their regular rate of pay.
What does exempt/nonexempt mean?
Exempt employees are employees who do not have to be paid overtime. In other words, they are exempt from receiving overtime pay under the FLSA.
Most employees, including some salary employees, are nonexempt, meaning they must receive overtime pay for their overtime hours.
What jobs are exempt from receiving overtime pay under the FLSA?
The FLSA exempts a number of employees from receiving overtime. Most people assume this means salaried workers, but that is not inherently true. All kinds of employees are exempt or nonexempt. Even some hourly employees are exempt from receiving overtime, depending on their work and salary.
Many states have their own overtime exemptions. Some have laws that make FLSA exempt employees nonexempt. For instance, West Virginia law protects veterans from being classified as exempt, no matter what job they do.
One field that goes back and forth is emergency response. In Arkansas and Rhode Island, for example, emergency responders — including firefighters, EMTs, and police officers — are specifically exempt from receiving overtime. In Ohio and Texas, emergency responders are given compensatory time instead, to help cut down costs. Other states like West Virginia and Washington make a point of giving these workers overtime or some other form of compensation.
By and large, however, most states follow the FLSA’s list of exemptions.
When are professional, executive, and administrative employees exempt?
The most recognizable FLSA exemption is for “bona fide executive, administrative, professional, and outside sales employees.” But who exactly does this exemption apply to? Administrative assistants? Professional photographers? Car salesmen?
The answer is it’s complicated. Job titles cannot exempt someone from receiving overtime. Rather, their exemption is based on salary amount, job duties, and educational qualifications.
First, in order to be exempt, the employee in question needs to be making at least $455 per week if they are salaried or $27.63 per hour if they are hourly. You’ll notice that means salaried workers aren’t automatically exempt. If you are a salaried employee making $22,000 a year, you still qualify for overtime, because, divided by 52 weeks, you make less than the weekly salary requirement to be exempt.
Job duties require a bit more study. For example, executive employees are exempt when they meet ALL of these three criteria:
- Their primary duty is to manage the enterprise or a division or department of the enterprise.
- They are in charge of at least two other full-time employees.
- They have the ability to hire and fire or have considerable weight in deciding whether an employee is hired or fired.
If any of these requirements are not met, the employee is not exempt. That means if you are an executive employee — the director of a subdivision of the company, for instance — but only one other employee reports to you, you would not be exempt from receiving overtime. That’s even if your salary exceeds $455 per week and you spend the majority of your time telling that one employee what to do.
Keep in mind, the FLSA also has an exemption for highly compensated employees. These are employees who perform office or non-manual work and receive $100,000 a year or more in compensation (including at least $455 per week). These workers are exempt so long as they perform at least one of the duties (and not necessarily all) of an exempt executive, administrative, or professional employee.
So getting back to that executive employee who only has one report, if that person makes a weekly salary of $2,000, they would then be exempt from receiving overtime because they make at least $100,000 a year and fulfill one, if not more, of the criteria listed for exempt executive employees.
For more information on exemptions related to professional, administrative, executive, outside sales, and computer employees, check out the Department of Labor’s overtime fact sheet.
Are veterans exempt from receiving overtime?
Veterans cannot be exempt from receiving overtime, even if they might otherwise be viewed as an executive, administrative, or professional employee. The law states “no amount of military training will satisfy the requirements of the learned professional exemption because the exemption applies only to employees who are in occupations that have attained recognized professional status, which requires that an advanced specialized academic degree is a standard prerequisite for entrance into the profession. No amount of military training can turn a ‘blue collar’ occupation or a technical field into a profession.”
Which employees are specifically not exempt under the FLSA?
Contrary to many state overtime laws, the FLSA does not exempt police, firefighters, paramedics, and other first responders. It also does not exempt detectives, state troopers, rescue workers, ambulance personnel, park rangers, parole officers, etc.
The FLSA also does not exempt “blue collar” workers, including “workers who perform work involving repetitive operations with their hands, physical skill, and energy.” Examples of these are electricians, carpenters, mechanics, plumbers, iron workers, longshoremen, and construction workers. The FLSA overtime fact sheet explicitly states these workers are entitled to minimum wage and overtime pay and “are not exempt under the Part 541 regulations no matter how highly paid they might be.”
Is compensatory time legal?
Under the FLSA, only workers employed by a government agency may be given comp time instead of overtime pay. A few states that have their own overtime laws, however, have expanded that right to all nonexempt workers. Comp time must be given at a rate of time and a half, just like overtime pay. Just as a worker would earn 1 ½ times their hourly rate per hour they work over 40, comp time is given at 1 ½ hours to every hour worked over 40. If an employee worked 42 hours in a workweek, they would receive three hours of comp time.
It’s typical for states offering comp time as an option to have a parameter set on when workers must take their comp time and how many hours of comp time they can save up at a time. In Iowa, for instance, workers may accrue up to 80 hours of compensatory time and can roll that time over to the next year if they wish. In Ohio, any accrued compensatory time must be used within 180 days of when it was earned.
How do predictive scheduling laws affect state overtime laws?
Predictive scheduling laws often have components similar to overtime. For example, the Emeryville 5-39.06 Right to Rest section says employees are to be given 11 hours of rest between shifts. The law goes on to say “an employee who agrees in writing to work hours described in this section shall be compensated at one and one-half (1-1/2) times the employee’s regular rate of pay for any hours worked less than eleven (11) hours following the end of a previous shift.”
Because predictive scheduling laws were originally intended to assist part-time workers whose scheduled hours were being reduced (rather than increased) without much advance notice, many state and local governments don’t have clear policies on how predictive scheduling policies might affect a worker’s regular rate of pay if they were to receive overtime.
Additionally, many states still haven’t updated their wage and hour pages online to reflect the changes made by predictive scheduling laws.
Employees who receive both predictability pay and overtime hours in the same week and believe they are not being compensated accurately should contact their city hall. Questions can be directed to their city’s wage division, labor standards division, or even the city manager’s office.