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The FLSA sets the rules for overtime work and wages.

Overtime as Defined by the FLSA

The Fair Labor Standards Act (FLSA) defines overtime as the hours worked beyond 40 hours in a workweek. FLSA uses a different overtime threshold for certain jobs.

For some jobs, overtime may be used differently, indicating the work duties performed outside of an employee’s regular schedule. You are free to define overtime however you wish, provided that the actual overtime pay is not less than FLSA’s minimum requirements.

You may also adjust work schedules to prevent employees from working beyond their normal hours (under the FLSA standards).

Overtime rules

You are required to pay employees extra wages in addition to their regular rate of pay after working more than 40 hours in one workweek. This amount should be at least one and one-and-half times the employees’ normal pay rate. Employers can pay overtime at a higher rate or even for 35 hours of work a week.

Some states have established their own overtime laws. When employees are subject to federal and state overtime laws, the higher standard of overtime pay will apply. Extra pay for working nights and weekends is subject to employee-employer agreements.

FLSA overtime violations

You may face overtime claims under the FLSA if:

  • You wrongly treat employees as exempt from FLSA requirements.
  • You do not record or pay for the ‘off the clock’ hours spent on job-related activities. These include all compensable activities performed outside employees’ normal shifts.
  • You do not include ‘wage augments’ like shift differential or longevity pay when calculating employees’ overtime rate. Wage augments can be loosely defined as the ‘bonuses’ received in addition to base wages.

A waiver on overtime pay is deemed illegal under labor laws. Neither employer nor employee can waive overtime pay. However, state laws may allow workers to request time off later as an alternative. Known as ‘comp time,’ federal law allows this only for public employers and employees, so most businesses cannot have such agreements.

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