Compliance Watch:
What are my overtime rights in the US?

September 3rd 2024

Overtime rules are designed to protect employees from being taken advantage of and promote fair working conditions. Therefore, understanding your rights is essential to ensure fair payment for work done beyond regular hours and to successfully navigate employment regulations, often seen as a daunting task. 

In the US, there are laws at the federal level that govern overtime rights, as well as separate laws established by many individual states. Employees and employers should be aware of both the federal and state laws applicable to their location.

In this article, we will explore the laws, regulations and practices in the US concerning overtime work and employee rights, offering guidance in response to commonly asked questions. 

This Article Covers

Understanding Overtime in the US
Common Questions About Overtime in the US
Legal Working Hours in the US
Overtime Eligibility in the US
Overtime Payment Calculations in the US
Receiving Overtime Payment in the US
Violations of Overtime Law in the US

Understanding Overtime in the US

Is overtime pay mandatory in the US?

In the US, it is mandatory for the majority of employers to pay overtime to their workers, unless the employee is exempt. It is the right of employees to receive fair compensation for all work performed. The federal Fair Labor Standards Act (FLSA) governs overtime in the US. If an employer is not covered under this Act, they may not be required to pay overtime to their employees.

More details of eligibility and exemptions from overtime can be found in Understanding US Overtime Laws.

When do I qualify for overtime pay in the US?

In the US, a non-exempt employee aged 18 or above is entitled to receive overtime pay for all hours worked over 40 in a given workweek. At the federal level in the US, there are no limits on the number of hours an employee may work in a workweek. Therefore, employees need to be aware that if required to work more than 40 hours, the overtime rate should be applied to this extra time.

In the US, there are no special rules for working on weekends, nights or holidays. The employee’s regular rate of pay will apply unless overtime is worked on such days. Nonetheless, employers are able to implement alternative overtime policies if they desire. 

In addition to the federal overtime rules, individual States in the US may have established their own overtime regulations, including daily overtime practices. Both employers and employees need to be knowledgeable of state and federal regulations to ensure compliance with labor laws.

How much is overtime pay in the US?

In the US, overtime pay should amount to at least one and one-half times the rate of an employee’s regular pay. The overtime rate must be applied to every hour worked over the threshold outlined by the FLSA. For example, if an employee’s regular pay rate is $24 per hour, their overtime rate would be 1.5 times 24, amounting to $36 per hour.

Double-time pay is not a requirement under the FLSA. However, individual employers can form agreements with their employees or employee representatives if they wish. In addition, some states have their own laws regarding double-time pay, so it is key to remain informed of state-level rules. 

Which laws govern overtime in the US?

Employees in the US have the right to be compensated for all work they have carried out. In the US, overtime is governed by the federal Fair Labor Standards Act (FLSA). Under this Act, the following rules apply:

  • It is obligatory for all non-exempt employees to receive overtime pay for every hour over 40 worked in a workweek. 
  • They must receive, at the least, 1.5 times their regular pay rate. 
  • Overtime pay is not mandatory for working on weekends, nights or holidays unless overtime hours are worked during such periods. 
  • There is no cap on the amount of hours in a day or week that an employee can be required to work.
  • The FLSA applies to a workweek, a fixed and recurring period of 168 hours, or seven consecutive 24-hour periods. The workweek does not necessarily align with the calendar week, it can start on any day. Employers can establish different work weeks for employees. 

Many states have established separate overtime laws. In instances when federal and state laws differ, the law which is more favourable to the employee will be applicable.

Common Questions About Overtime in the US

Do employers have to pay overtime in the US?

All employers covered by the federal FLSA are legally required to pay overtime to non-exempt employees. The vast majority of employers are covered under the FLSA, as it applies to all employers who make at least $500,000 in annual sales or who engage in interstate commerce. This may make small businesses think that the FLSA does not apply to them, however, the ‘interstate commerce’ provision is very broad. It applies to all business conducted between states, including phone calls, sending or receiving mail, or the handling of goods that have come from or will be sent to a different state. 

On the rare occasion that a business is not covered by the FLSA, state overtime laws may apply instead. 

Can an employee refuse to work overtime in the US?

In some cases, the decision to work overtime can be up to the employee, yet in others, the employer may require the employee to work extra time. In the US, according to federal law, employees cannot refuse to work overtime if required by their employer. The FLSA does not set a maximum number of working hours in a work day or week.  If an employee refuses to work overtime, they could face disciplinary action, including termination. 

However, employees cannot be forced to work overtime if it breaches the conditions of a contract or agreement. Additionally, certain industries are regulated and there is a maximum number of hours an employee is permitted to work each day. It is illegal for employers to break these rules.

Can I take comp time instead of overtime pay in the US?

Some employers in the US give their employees compensatory time or comp time, which is paid time off from work, instead of payment for overtime work. However, in most circumstances, this is illegal, especially for non-exempt employees working in the private sector. In addition, employees cannot be forced to take comp time. 

Government agencies may give their employees comp time if certain conditions are met:

  • The comp time arrangement must be agreed upon in writing between the employer and employee before the overtime work begins.
  • There is a written agreement in place, formulated by a union representative. 

If these conditions are met, public sector employers may provide comp time instead of wages for irregular or occasional overtime work. However, for regularly scheduled overtime work, comp time can only be given to those required to work overtime hours on flexible work schedules. 

Can I get overtime pay in the US without employer approval?

Yes, according to the federal FLSA, ‘work not requested but suffered or permitted is work time’. This means that a non-exempt employee is entitled to receive overtime pay regardless of whether they received prior approval. 

Permission is not needed if the employer knew or should have known about an employee working additional hours. However, employees cannot deliberately prevent their employer from knowing about overtime work. Moreover, employees can be disciplined for working overtime without gaining prior permission; something to take note of.

Does the US have double-time pay?

No, the federal FLSA, which governs overtime in the US, does not require that double time be paid to employees. Employers may establish double-time agreements if they wish. However, it is not a legal obligation. 

Individual states may have overtime laws in place which specify double-time requirements. Therefore, both employers and employees should be informed of local laws in addition to federal rules. 

What is working ‘off-the-clock’ in the US?

Off-the-clock work refers to instances when an employee performs job duties known to the employer without receiving any payment or compensation for their time. This often occurs during periods that should be considered as overtime. Examples of off-the-clock work include:

  • Working through a designated meal or rest break. 
  • Completing pre-shift preparations.
  • Handling post-shift responsibilities such as cleaning or closing up a workspace. 
  • Unpaid rework, such as if asked to redo a project or correct errors.

It is crucial to emphasize that it is illegal for employers to request employees to engage in off-the-clock work. This violates federal wage and hour laws such as the FLSA. Employees must be appropriately compensated for all work performed.

What are common ways employers avoid paying overtime in the US?

It is essential to understand the legal loopholes that may lead to employees working additional hours without receiving overtime compensation. Employers commonly avoid paying overtime by employing tactics such as:

  • Mandating ‘off-the-clock’ work: This is when tasks are performed outside of regular hours, such as prep work, phone duties, or post-shift responsibilities. Employers must accurately document all hours worked by employees and pay them accordingly. Assigning tasks outside of regular work hours without accurate compensation is unlawful.
  • Hour averaging: This occurs frequently in bi-weekly or bi-monthly pay structures, where employers may attempt to average hours over multiple weeks to avoid overtime. However, the practice of averaging hours over two or more weeks is forbidden. For instance, if an employee works 48 hours one week, the employer might schedule them for only 30 hours the next week, effectively averaging out the hours. This allows the employer to pay for two standard 40-hour weeks, avoiding overtime payment obligations.
  • Offering compensatory time-off: Employers may grant employees comp time-off instead of paying overtime for hours worked beyond the standard 40-hour work week. For example, if an employee works a double shift on Thursday, they might be allowed to take Friday off instead, ensuring their total weekly hours remain under the 40-hour threshold.
  • Misclassification of workers as salaried employees: Employees earning above $844 per week may be classified as salaried workers and exempt from overtime pay. This will increase to $1,128 per week ($58,656 yearly) on January 1, 2025. Further increases will occur every three years, starting on July 1, 2027. However, employers might unlawfully categorize workers earning less than this threshold as salaried employees to evade overtime payment requirements. This practice violates federal labor laws.

Can you work seven days in a row in the US?

In the US, the FLSA is a federal law that governs employment and labor standards, including overtime and working hours. The FSLA does not limit the number of days in a row in which an employee aged 16 or over can work, nor does it cap the number of hours permitted to work each week. However, it does require overtime pay to be provided to non-exempt employees who work more than 40 hours in a workweek.  

How many ten-hour days can you work in a row in the US?

There is no special overtime law at the federal level in the US for employees who may work four, ten-hour shifts in a 40-hour workweek. 

However, some states have established this special overtime rule. In such cases, overtime comes into play when the employee, on the valid alternative workweek schedule, works more than ten hours in a day or over 40 hours in a workweek. This alternative workweek schedule must be validly agreed upon through legal channels. 

What are full-time hours in the US?

Traditionally, full-time hours in the US were considered between 32 and 40 per workweek. However, after the introduction of the Affordable Care Act (ACA), commonly known as the health reform, a full-time employee is now considered one who works on average at least 30 hours per work week, or 130 hours per month. 

How many hours straight can you legally work in the US?

In the US, there are no federal laws that limit the number of hours that most employees can work as long as they are aged 16 or above. Therefore, individuals could technically work up to 24 hours per day, seven days per week. There are some exceptions to this rule:

  • Workers in regulated industries, such as truckers, have a maximum number of daily hours they can work. 
  • Employees with collective bargaining agreements may have limits to the number of hours per day permitted to work.  

Is overtime after eight hours or 40 hours in the US?

In the US, non-exempt workers qualify for overtime pay for all hours over 40 worked in a single work week. Overtime is governed by the federal FLSA. There is no daily overtime rule at the federal level. 

Despite this, a number of states have established their own overtime laws. Some of these grant daily overtime regulations whereby any hours over eight worked in a day must be paid at the overtime rate. 

Does working on the weekend qualify for overtime pay in the US?

No, there are no special rules in the US for working on Saturdays or Sundays. Working on the weekend does not automatically qualify an employee to receive overtime pay. The normal overtime rules apply. If an employee eligible for overtime has already worked 40 hours in a workweek before the weekend, any hours worked over the weekend will be compensated for with overtime pay. This example is presuming that the workweek is from Monday to Sunday. Employers can schedule different workweeks for employees, so it is essential to be aware of this to properly calculate your overtime earnings. 

How many hours off between shifts is required in the US?

There is no federal law that regulates the number of hours required between shifts. Employers can decide how much time they give their employees between consecutive shifts. 

However, regulated industries, such as truck driving, may set a limit on the number of hours an employee can work in a day. Workers in unions may also have certain agreements in their collective bargaining contracts regarding time off between shifts.

What does ‘hours worked’ include in the US?

In the US, ‘hours-worked’ refers to all the time an employee is on duty, at a designated workplace or extra time an employee is suffered or permitted to work. This can often include rest breaks, meal breaks and commute times. Employees must receive payment for any time considered as hours worked. The regulations regarding meal, rest and travel time are as follows:

  • Meal and rest breaks: These are not mandatory under the federal FLSA. However, when short breaks of around five to 20 minutes are offered by employers, this time must be included in the total number of hours-worked. If a 30 minute meal break is given, this time does not need to be compensated for unless the employee is required to remain on duty during this period. 
  • Travel time: Normal travel time to or from work is not typically included in hours-worked in the US. However, this time is covered if:
    • An employee is required to travel during regular working hours.
    • An employee is required to work during travel time.
    • An employee is required to travel on a one-day assignment away from the official workplace.
    • An employee is required to travel on an overnight assignment away from the official workplace during hours on non-workdays that correspond to the regular working hours.

What is the most hours a salaried employee can work in the US? 

Federal law does not specify the maximum number of hours a salaried employee can work. Therefore, salaried employees are required to work all the hours assigned by the employer. However, non-exempt salaried employees are eligible to receive overtime pay for all hours worked over 40 in a workweek. Exempt workers are not able to receive overtime pay for working more than this amount.

It is good practice to keep track of the hours you work and if you are receiving less than minimum wage per hour, you may be able to file a claim under federal or state labor laws. 

What is the maximum number of hours an hourly employee can work in the US?

For the majority of hourly employees, there is no limit on the amount of hours employees 16 years old or above are able to work in a work week. However, there are some exceptions, including for those in regulated industries or with collective bargaining agreements where there are daily hour limits in place. 

Although there is no cap on the legal number of hours permitted to work in the US, non-exempt employees must receive overtime pay for more than 40 hours worked in a workweek.

Overtime Eligibility in the US

Who is eligible for overtime pay in the US?

Workers are split into two categories in the US: exempt or non-exempt workers. Non-exempt workers are entitled to receive overtime pay and tend to be hourly-employees performing tasks such as manual labor or customer services. Employees in the US who are at least 16 years old are eligible to receive overtime pay unless they fall into the exempt category.

Who is exempt from overtime pay in the US?

In the US, under the FLSA, certain types of employees are exempt from receiving overtime pay. Exempt employees tend to be in white-collar jobs, including administrators, professionals or executives. Those in such professions must possess three qualities in order to be exempt from overtime. This is determined by the following three tests:

  1. The salary basis test: The employee should receive a pre-determined and fixed salary, independent of the number of hours or quantity of work performed. Put simply they must be an salaried, not an hourly employee.
  2. The salary test: The employee’s salary should meet the exemption threshold, which in January 2024 is $844 per week. This will increase to $1,128 per week ($58,656 yearly) on January 1, 2025. Further increases will occur every three years, starting on July 1, 2027.
  3. The duties test: The work of the employee must primarily involve administrative, professional or executive duties, requiring the use of independent judgment and discretion.

Additionally, there are a number of other jobs which are categorised as exempt from overtime, including: 

  • Airline employees
  • Commissioned sales employees
  • Computer professionals
  • Companions for the elderly
  • Drivers, driver helpers and loaders
  • Live-in domestic employees
  • Farmworkers employed on small farms
  • Federal criminal investigators
  • Fishermen
  • Motion picture theatre employees
  • Outside sales employees
  • Railroad employees
  • Salesmen and mechanics

A complete list of categories of exempt employees and the specific regulations that apply can be found on the official US Department of Labor website. 

Can salaried employees get overtime pay in the US?

Yes, overtime laws can apply to salaried employees in the US as long as they are not exempt. To qualify as an exempt employee and therefore, be unable to receive overtime pay, a salaried employee must:

  • Hold an administrative, professional or executive position in the workplace.
  • Carry out tasks that require the use of independent judgment and discretion.
  • Earn a minimum salary of at least $844 per week. This will increase to $1,128 per week ($58,656 yearly) on January 1, 2025. Further increases will occur every three years, starting on July 1, 2027.

Overtime Payment Calculations in the US

What is my regular rate of pay in the US?

The regular rate of pay refers to the usual compensation an employee receives for each hour of work, ensuring it meets at least the federal minimum wage requirement. While determining the regular hourly rate is straightforward for hourly employees, calculating it for other types of employees and earnings can be more complicated:

Salaried employees:

  • First, multiply the monthly salary by 12 to calculate the annual salary.  
  • Then divide the annual salary by 52 (the number of weeks in a year) to get the weekly salary. 
  • Finally, to reach the regular hourly rate, divide the weekly salary by the maximum number of regular hours you can work in a week (40 hours).

Piecework or commission employees (three methods):

  • The rate of the piece or commission.
  • The outcome of dividing the amount earned in a workweek by the number of hours worked. 
  • If working in a group, first calculate the group rate by dividing the number of pieces by the number of people in the group. Then multiply this rate by the number of hours an individual worked to calculate an individual regular rate of pay.

How to calculate overtime in the US?

In the US, overtime is paid at one and one-half times the normal rate of pay, commonly known as ‘time and a half’. A non-exempt employee can receive overtime pay for working more than 40 hours in a work week.

To calculate the overtime pay for an employee, these steps must be followed:

  • First, calculate the regular rate of pay for an individual employee. 
  • Then, multiply this amount by 1.5 to calculate the hourly overtime rate of an employee.
  • Finally, multiply the overtime rate by the number of overtime hours worked to total the amount of overtime pay an employee is owed.

Find out How to Calculate Overtime in the US.

How is overtime taxed in the US?

In the US, overtime wages are subject to the same tax rates as regular income. An individual’s tax liability is determined by their tax bracket, which is determined by their taxable income and filing status. 

However, if overtime earnings cause someones total income to rise significantly, they may find themself in a higher tax bracket. Consequently, their overall income will be subject to higher taxes, rather than just the extra overtime pay. It is crucial to understand that moving into a higher tax bracket is temporary and only applies to the specific pay period in which the additional income was earned.

Receiving Overtime Payment in the US

How is overtime paid in the US?

Overtime is paid using the same method that regular wages are paid in the US; this may differ depending on the individual employer and in some cases on the preference of the employee. Usually, wages, including overtime, are delivered by a direct deposit to the employee’s bank account or by a paycheck covering the pay period in which the wages were earned. Employees must also be provided with either a digital or paper itemized wage statement, known as a paystub. 

When do I receive my overtime paycheck in the US?

As stated by the federal FLSA, workers should normally receive their overtime paycheck on the regular pay day for the pay period during which the wages were earned.

Violations of Overtime Law in the US

What if my employer refuses to pay me overtime in the US?

If you have not received an overtime payment for performed overtime work in the US, the first step may be to contact your employer or payroll department. This is often recommended to give them the opportunity to resolve the issue if a mistake has been made. 

If the issue remains unresolved, there are a few options available to proceed with the retrieval of missing overtime wages:

  1. File a wage complaint with the US Department of Labor’s Wage and Hour Division (WHD). The WHD enforces the FLSA by investigating wage claims and has the authority to order any money owed to be paid. You can visit your local WHD office or call the helpline. Alternatively, you could file a complaint with your state’s Department of Labor. 
  2. File a civil lawsuit against your employer through the services of a lawyer. Employees often worry about hiring an attorney due to the cost. That is why it is important to understand that many lawyers take on such cases on a contingency fee basis, meaning you do not have to pay upfront. This is because those who are rightfully owed compensation tend to be awarded double the wages owed in addition to the legal fees and costs. 
  3. If there is a situation where numerous workers under an employer are missing wages, it may be possible to bring a collective action on behalf of all the workers who are owed money.

What is the penalty for failing to pay overtime in the US?

According to the US Department of Labor, employers who wilfully or repeatedly break federal law by failing to pay their employees their rightful overtime wages can face a civil penalty of up to $1,000 for each violation. 

In addition, intentional breaches of the federal FLSA could lead to criminal charges, with the employer fined up to $10,000. A repeat offense may result in imprisonment. A deliberate violation includes all actions performed purposefully or knowingly rather than accidentally or involuntarily.

As well as penalties, courts are often inclined to order the employer to pay the employee double the amount of wages owed and to cover reasonable attorney fees and costs.

How can I file a wage claim for overtime in the US?

In the US, an employee or former employee is able to file a wage claim to recover unpaid overtime wages. Wage claims should be filed with the US Department of Labor (DOL). The claim process follows these initial steps:

  1. Gather as much relevant information as possible. This is key to having a successful claim.
  2. Contact the DOL by submitting an online form, or calling the helpline at 1-866-487-9243. Alternatively employees can visit their local WHD offices. 
  3. Once contact has been made, the DOL representative assigned to handle your case will work with you to determine the best course of action.

Can employers retaliate against employees for making a wage claim in the US?

No, in the US it is forbidden for employers to retaliate against employees or former employees for filing or threatening to file a wage claim. The federal FLSA states that it is unlawful for any person to ‘discharge or in any other manner discriminate against any employee because such employee has filed any complaint’. It does not matter if the complaint was made in writing or orally, all wage claims are protected. Protection is also extended to employees working for an employer not covered by the FLSA.

If an employee faces any form of retaliation, including termination, due to filing a claim or participating in an investigation, they have the right to file a retaliation complaint with the Wage and Hour Division of the Department of Labor. Alternatively, they can pursue legal action independently to seek remedies such as reinstatement, compensation for lost wages, and liquidated damages.

Learn more about US Federal Labor Laws through our detailed guide.

Important Cautionary Note

This content is provided for informational purposes only. While we make every effort to ensure the accuracy of the information presented, we cannot guarantee that it is free of errors or omissions. Users are advised to independently verify any critical information and should not solely rely on the content provided.