Overtime

The Fair Labor Standards Act (FSLA) is a federal law that applies to all states.  The FLSA does not limit either the number of hours in a day or the number of days in a week that an employer may require an employee to work who is at least 16 years old. However, if you are a non-exempt employee – that is, eligible for overtime – and you work more than 40 hours per week, you must be paid overtime. For example, bona-fide executive, administrative, professional, outside sales and computer professional employees are exempt and, therefore, not eligible for overtime. The 40-hour work week is measured by seven consecutive 24-hour periods, i.e. 168 hours, but can start on any day of the week.  You should ask your employer when your 40-hour work week starts.  Some exceptions to the 40 hours per week standard apply to certain police and firefighters and to some employees of hospitals and nursing homes. 

Individual states may pass laws that exceed the requirements of the FLSA. Under New York’s labor laws, if you are not a live-in or residential employee, you are entitled to overtime if you work more than 40 hours in a work week; if you are a residential, or live-in, employee, you are entitled to overtime if you work more than 44 hours in a work week. Remember to ask your employer when your work week starts. 

Your overtime rate must be equal to at least 1½ times your regular rate of pay, but employers may pay more. The rules for calculating overtime pay amounts are not complicated, except if you have received bonus pay. Your bonuses or commissions must be included as part of your regular rate of pay in order to calculate your overtime rate. 

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. You might be owed overtime or additional overtime in the following cases: 

• Your employer pays you $20/hour and $30/hour overtime; but, you received a $1,000 bonus last year as a reward for your excellent work throughout the year. 
• Your work week is from Monday, 9 a.m. to the following Monday, 9 a.m. Last week, you worked your normal 40-hour shift: Monday through Friday, 9 a.m. to 5 p.m. But this week your employer wants you to start work 6 hours early on Monday, at 3 a.m. 
• Your shift is over, but you haven’t finished a project that you started an hour ago; you ask your supervisor if you can stay to complete it and he says, “Yes, stay, but this isn’t overtime.” 
• Your shift is over but your supervisor tells you to finish up some work you started earlier; you stay and it takes you 3 hours to complete the work. 
• Your work is done for the day, but you want to get a head start on tomorrow’s job assignment. You ask your supervisor if you can take the assignment home tonight and start on it. He says “Sure!” 

• Your employer has a “no overtime work” rule. As you start to head home at the end of your shift, your supervisor asks you to stay and help him finish some work. 
• After you start work at 9 a.m., your supervisor asks you to go offsite at 1 p.m. to pick up some equipment; you do, but have to wait until 5 p.m. before it is ready. You finally return to work at 7 p.m. 

The most common complaints by employees are those for unpaid minimum wages and overtime compensation. The FLSA allows employees up to two years to file such claims in federal court, or three years if the violations are willful. New York, though, allows employees to claim unpaid minimum wages and overtime compensation for a period going back six (6) years. 

Legal Editor: Joseph F. Tremiti, February 2015 (updated October 2018)