employees working overtimeWAGES

Overtime Pay: Should I be paid overtime for working more than 40 hours a week?

Updated November 17, 2019  

I wish I could tell you that you are entitled to overtime pay.  But, the answer to your question is that it depends. There are laws that state employees working more than 40 hours a week should receive time and one-half, but unfortunately not every employee qualifies. I have summarized the law below to help you determine if you qualify. 

There are federal and state overtime laws (although not all states have an overtime law). Let’s start with the federal law. 

FEDERAL OVERTIME LAWS 

The federal overtime laws can be found in the Fair Labor Standards Act (FLSA). The law states that unless you are exempt, employees must receive overtime pay for hours worked over 40 in a workweek at a rate not less than time and one-half of their regular rate. 

You are either an exempt employee or a non-exempt employee under federal law. This is important because exempt employees are not entitled to overtime pay. So, if you want overtime pay, you want to be a non-exempt employee. 

**THIS DOES NOT APPLY TO BLUE COLLAR WORKERS, POLICE, FIREFIGHTERS, PARAMEDICS, AND OTHER FIRST RESPONDERS. IF YOU HOLD ONE OF THESE POSITIONS, YOU ARE NON-EXEMPT AND MAY BE ENTITLED TO OVERTIME PAY. 

Step One: Job Classification. FLSA splits jobs into 5 categories: Executive, Administrative, Professional, Computer, Outside Sales and Highly Compensated Employees. 

Highly Compensated Employees: If you perform office or non-manual work and get paid a total annual compensation of $100,000 or more ($107,432 or more effective January 1, 2020), you are exempt from the law and cannot receive overtime pay. 

Executive (chief executive officer, controller, vice president, director): You are exempt and not entitled to overtime pay if ALL of the following are met: 

  1. You receive a salary (a predetermined amount of compensation each pay period on a weekly, or less frequent, basis, and the predetermined amount cannot be reduced because of variations in the quality or quantity of your work) of a rate not less than $455 per week ($684 a week effective January 1, 2020);
  2. Your primary duty is to manage the company, a department or subdivision;
  3. You manage the work of at least 2 full-time employees; and
  4. You have the authority to hire or fire other employees or your suggestions or recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees is given particular weight.

Administrative (manager, supervisor, administrator): You are exempt and not entitled to overtime pay if ALL of the following are met: 

  1. You receive a salary (a predetermined amount of compensation each pay period on a weekly, or less frequent, basis, and the predetermined amount cannot be reduced because of variations in the quality or quantity of your work) of a rate not less than $455 per week ($684 a week effective January 1, 2020);
  2. You perform office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
  3. Your job mainly includes exercise of discretion and independent judgment with respect to matters of significance.

Learned Professional (accountant, nurse, engineer): You are exempt and not entitled to overtime pay if ALL of the following are met: 

  1. You receive a salary (a predetermined amount of compensation each pay period on a weekly, or less frequent, basis, and the predetermined amount cannot be reduced because of variations in the quality or quantity of your work) of a rate not less than $455 per week ($684 a week effective January 1, 2020);
  2. You perform work requiring advanced knowledge (work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment);
  3. The advanced knowledge must be in a field of science or learning: and
  4. The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction (law medicine, accounting, etc.).

Creative Professional (composer, singer, graphic designer): You are exempt and not entitled to overtime pay if ALL of the following are met: 

  1. You receive a salary (a predetermined amount of compensation each pay period on a weekly, or less frequent, basis, and the predetermined amount cannot be reduced because of variations in the quality or quantity of your work) of a rate not less than $455 per week ($684 a week effective January 1, 2020); and
  2. You perform work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.

Computer Employee (network or database analyst, developer, programmer, software engineer): You are exempt and not entitled to overtime pay if ALL of the following are met: 

  1. You receive a salary (a predetermined amount of compensation each pay period on a weekly, or less frequent, basis, and the predetermined amount cannot be reduced because of variations in the quality or quantity of your work) or fee basis at a rate not less than $455* per week ($684 a week effective January 1, 2020); or, if compensated on an hourly basis, at a rate not less than $27.63 an hour;
  2. You are employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the following duties:
  3. The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
  4. The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
  5. The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
  6. A combination of the aforementioned duties, the performance of which requires the same level of skills.

Outside Sales (salespersons, contract negotiators): You are exempt and not entitled to overtime pay if ALL of the following are met: 

  1. Your main job is making sales 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
  2. You must be customarily and regularly engaged away from the employer’s place or places of business (this does not include sales made by mail, telephone or the Internet, but rather sales at a customer’s place or business or home).

If you find that you did not meet all of the requirements in one of the above categories, read on. If you did meet all requirements and are considered an exempt employee, jump down to the state law portion of this article. 

Step Two: Hours Worked. You now need to determine if the 40+ hours worked was within a ‘workweek.’ A workweek is a fixed and regularly recurring period of basically 7 consecutive days. It need not coincide with the calendar week, but may begin on any day and at any hour of the day. So, if your workweek is defined as Sunday through Saturday and you worked 40+ hours starting at the end of one week into the next, you will not be entitled to overtime. The 40+ hours have to all be within your defined workweek. Your employer will define the workweek. The best way to determine your work week is to look at your paycheck. 

If you did not meet any of the job requirements above and if you worked over 40 hours in a workweek, contact an attorney. Your employer should probably be paying you overtime. 

STATE OVERTIME LAWS. 

If you find that you are an exempt employee under federal law and not entitled to overtime, your last hope is state law. However, most states follow FLSA. I have provided links to each state that reference overtime laws. Pay attention to the exemptions. Remember, if you are exempt, you do not receive overtime pay. 

Alabama 
Alaska 
Arizona 
Arkansas 
California 
Colorado 
Connecticut 
Delaware 

District of Columbia 
Florida 
Georgia 
Hawaii 
Idaho 
Illinois 

Indiana 
Iowa 
Kansas 
Kentucky 
Louisiana 
Maine 
Maryland 
Massachusetts 
Michigan 
Minnesota 
Mississippi 
Missouri 
Montana 

Nebraska 
Nevada 
New Hampshire 
New Jersey 
New Mexico 
New York 
North Carolina 
North Dakota 
Ohio 
Oklahoma 
Oregon 
Pennsylvania 

Rhode Island 
South Carolina 
South Dakota 
Tennessee 
Texas 
Utah 
Vermont 
Virginia 
Washington 
West Virginia 
Wisconsin 
Wyoming 

If you are still unsure whether you are entitled to overtime pay, contact an employment attorney. Most will provide a free consultation. 

The words and other content provided in the blog, and in any linked materials, are not intended and should not be construed as professional advice (please read the Terms and Conditions for additional information). 

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