Under the Fair Labor Standards Act (“FLSA”), overtime compensation generally must be paid to covered employees (employees who do not qualify for an FLSA exemption) at a rate of at least one and one-half times their regular rate of pay for each hour worked in excess of 40 hours per workweek. Some states have additional state-specific overtime laws. In most circumstances, overtime pay earned in a particular workweek must be paid on the regular pay day for the pay period in which the overtime wages were earned.
At your employer’s discretion, your workweek may begin on any day of the week and at any hour of the day. However, your workweek must be a fixed and regularly recurring period of seven consecutive 24-hour periods. Therefore, your employer cannot average your hours worked over two or more weeks to determine your hours worked per workweek.
In addition, under the FLSA, your employer is supposed to maintain records of the time you spend performing compensable work activities. If you bring an overtime claim against your employer, but your employer has failed to maintain the required records, you are entitled to recover overtime compensation based on a good faith (reasonable and realistic) estimate of the time you worked over the past two to three years for your employer.
A. Employees Paid by the Hour
If you are paid by the hour, your employer must pay you at least one and one-half times your regular hourly rate for each hour worked over forty hours per workweek.
B. Employees Paid on a Piecework Basis
If you are paid on a piecework basis, your regular rate of pay is obtained by dividing your total weekly earnings by the total number of hours you work in a particular workweek. You are typically entitled to an additional one-half times your regular rate of pay for each hour you work over forty hours per workweek, plus full piecework earnings.
C. Employees Paid a Salary for a Regular or Specified Number of Hours
If you are paid a salary for a regular or specified number of hours per workweek, your regular rate of pay is obtained by dividing your salary by the number of hours your salary is intended to compensate. If you do not meet any of the exemptions from receiving overtime pay, you may be entitled to an additional one-half times your regular rate of pay for each hour you work over 40 per workweek, plus your salary.
D. Weekend and Holiday Work
Under the FLSA, you are not entitled to an overtime premium solely because you perform work on a weekend or holiday. However, if this weekend or holiday work results in overtime hours worked in the workweek, you may be entitled to overtime pay.
E. Overtime Pay May Not Be Waived
The FLSA’s overtime requirement cannot be waived by agreement between you and your employer. As a result, if you reached an agreement with your employer to be paid a certain way, and it turns out that your pay structure and job responsibilities do not fall under any of the exemptions in the overtime laws, you may still be eligible to recover overtime pay for your overtime hours worked. Employers routinely misclassify their employees as exempt, paying them on a salary, or a salary plus commission basis, without properly analyzing whether these employees fit the legal definitions of who may be exempt from receiving overtime pay. An announcement by your employer that no overtime work will be permitted, or that overtime work will not be paid unless it is authorized in advance, will not impair your right to compensation for overtime hours worked.
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