Overtime Pay

Overtime Laws

A new overtime law went into effect on August 23, 2004. Although it was generally referred to as the new overtime law, it was actually the regulations of a very old Federal law that lawmakers changed, entitled the Fair Labor Standards Act of 1938 (FLSA). The FLSA also regulates equal pay, child labor and minimum wage.

Federal overtime law is enforced under the FLSA by the U.S. Department of Labor, Wage and Hour Division, for employees of private-sector businesses.

The Wage and Hour Division also enforces FLSA overtime law for employees of state and local governments, and Federal employees of the Library of Congress, U.S. Postal Service, Postal Rate Commission, and the Tennessee Valley Authority.

The U.S. Office of Personnel Management enforces it for other Federal employees. The U.S. Congress enforces it for congressional employees.

Federal overtime law does not require employers to pay overtime to employees who must work at night or on Saturdays, Sundays, holidays, or other "days of rest," unless the hours worked exceed 40 in one workweek.

It also does not require employers to pay overtime to employees for standby duty (e.g., carrying a company pager or cell phone), unless the employer imposes additional restraints such that employees cannot effectively use their standby time for personal pursuits.

Federal overtime law does, however, require employers to pay overtime if they call employees to work from standby duty, and the employees end up working over 40 hours in the same workweek as a result. It also generally requires employers to pay overtime if they make training mandatory during or outside of normal work hours, if the hours employees worked, including training time, exceed 40 in the same workweek.

Federal overtime law does not make mandatory overtime illegal, in that it does not limit the total number of hours that employers may make employees work per workweek, as do child labor laws. Consequently, employers may force employees age 16 and over (18 and over if hazardous duty) to work mandatory overtime hours. But, of course, employers must pay covered, nonexempt employees a premium for mandatory overtime hours, as previously explained.

Congressmen reintroduced a bill in July, 2007, called the Safe Nursing and Patient Care Act of 2007. If it passes, it will limit the number of mandatory overtime hours that nurses must work at certain patient-care facilities. At this writing, some state legislators have enacted or are considering equivalent state overtime laws for nurses.

Written agreements between employees (or unions) and employers are allowed to include or expand the minimum protections afforded by Federal overtime law. However, such agreements may not waive employee rights under the FLSA.

For example, a collective bargaining agreement or an explicit contract may provide eligible employees with double-time pay for overtime work on national holidays. But, such an agreement may not replace overtime pay with compensatory time off (commonly called comp time for short), except under special rules only for Federal employees.

In other words, private-sector employers may not rightfully offer or force comp time in place of overtime pay. However, private-sector employers may offer comp time as a reward, as long as it doesn't replace overtime pay (or minimum wage). Regardless, many employers still offer or force comp time, in ignorance of Federal overtime law or intentionally to evade it.

States and municipalities are allowed to establish their own overtime laws that include or expand the minimum protections afforded by the FLSA. Some have, while others have adopted the FSLA as is. Consequently, some of the information in this article may differ under state and municipal FLSA equivalents. Employees are protected by whichever law—Federal, state or municipal—is the most generous.

For example, at this writing, California overtime law requires employers to pay overtime for hours worked in excess of eight in any single workday, while the Federal FLSA requires employers to pay overtime only for work hours exceeding 40 total in a workweek. California overtime law is more generous to eligible employees in other ways, too.

See State Labor Laws to look up your state's overtime law. For more information or to report employer violations, start by contacting the Federal or your state's department of labor. Contact information is likely also in the government pages of your local phone directory.

The FLSA does not allow employers to retaliate against eligible employees for reasonably expecting their employers to pay them for overtime hours worked. Employers also cannot retaliate against employees for reporting employers' actions that are outlawed under the FLSA or for participating in FLSA proceedings.

Consult a lawyer for legal advice about overtime laws or to file an overtime lawsuit.

In November 2006, IBM and Siebel Systems agreed to pay back-overtime wages as a result of losing overtime lawsuits. Workers in both cases claimed that the companies had misclassified them as exempt employees, ineligible for overtime pay; the courts agreed. Subsequently, IBM agreed to pay $65 million under the FLSA, while Siebel agreed to pay $27.5 million under California overtime law and wage orders.

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