The Fair Labor Standards Act (FLSA) was first introduced in 1938, toward the end of the Great Depression, with laws regulating everything from child labor to maximum weekly work hours to establishing a minimum wage of 40 cents an hour.
Since then, FLSA regulations have evolved somewhat, and many states have developed their own overtime legislation, expanding and limiting overtime pay based on elements of a job, salary, and the needs of the surrounding community.
This map is designed to help employers and employees alike better understand labor laws in their state. This guide to each state’s overtime laws provides general information only and should not be used in place of legal advice. If you have questions regarding overtime laws in your state, consult your employment counsel, visit your state’s .gov website (such as Idaho.gov or Maryland.gov), or send your questions to the US Department of Labor at dol.gov/general/contact.
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.
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.
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.
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.
Most employees, including some salary employees, are nonexempt, meaning they must receive overtime pay for their overtime hours.
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.
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:
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.
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.”
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.
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.