The Fair Labor Standards Act (FLSA) overtime law does not limit the number of hours an employee over 16 years-old may work in a week. However, if you are a non-exempt employee under the FLSA and you work in excess of 40 hours per week, you must be paid overtime under overtime law. The FLSA exempts certain employees of retail and service establishments who are paid on a commission basis in whole or part from overtime law pay regulations. To be exempt, these employees must earn a regular rate of pay that exceeds 1½ times the applicable minimum wage for every hour worked in a workweek; and more than half their total earnings in an average pay period must consist of commissions on goods or services. Certain securities industry brokers are also exempt from overtime rules.

Your overtime rate must be equal to at least 1½ times your regular rate of pay, but employers may pay more. Bonuses or commissions that you receive must be calculated as part of your regular rate of pay for purposes of calculating your overtime rate. Overtime law under the FLSA does not require employers to pay (but they may choose to pay) overtime for holidays, weekends, night shifts, or if you work on a day that you would normally have off. The 40-hour workweek is measured by seven, consecutive 24-hour periods, i.e. 168 hours, but need not start on any particular day of the week.

How do I know if I am entitled to overtime pay?

The rules for calculating overtime pay amounts are fairly straightforward, except if you have received bonus pay. Consider that you might be owed overtime or additional overtime in the following situations:

  • Your employer pays you $20/hour, and $30/hour overtime. But you received a $1,000 bonus last year as a reward for excellent work throughout the year.
  • Your employer considers the workweek to be from Monday, 9 a.m. to Monday, 9 a.m. of the next week. Last week, you worked your normal 40-hour workweek from Monday through Friday, 9 a.m. to 5 p.m. This week, your employer is asking you to start your Monday shift six hour early, at 3 a.m.
  • Your shift is over, but you are in the middle of a specific task. You tell your supervisor you are staying late to finish it. Your supervisor says, “Yes, stay, but this isn’t overtime.”
  • Your shift is almost over, and your supervisor tells you to finish what you are doing before you go home. You know it will take you another three hours to finish. You stay at work and finish.
  • Your shift is over, but you are in the middle of a task. You tell your supervisor you can finish it at home that night. Your supervisor says, “Yes, that would be great.”
  • Your employer has a “no overtime work” rule. Your shift is over, but your supervisor asks you to finish what you are working on before going home.
  • Your supervisor asks you to go offsite, wait there until you are given a particular item, and then bring it back to work. You started work at 9 a.m.; you leave work at 1 p.m. and arrive at the destination, where you wait for several hours, and don’t return to work with the item until 7 p.m.

I think I have an unpaid overtime problem:

  • Act quickly–you have a limited time to file a complaint for FLSA violations.
  • Gather any documents relevant to your employment, including paystubs.
  • Consult an experienced employment layer; you’re initial FLSA consultation is free.

Changes may occur in this area of law. The information provided is brought to you as a public service with the help and assistance of volunteer legal editors, and is intended to help you better understand the law in general. It is not intended to be legal advice regarding your particular problem or to substitute for the advice of a lawyer.

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