Overtime

The federal Fair Labor Standards Act (FSLA) does not limit the number of hours an employee who is over 16 years old may work in a week. However, if you are a non-exempt employee, and you work more than 40 hours per week, you must be paid 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.

In New York, 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 headstart 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.

Legal Editor: Joseph F. Tremiti, February 2015

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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