Overtime rules: the forty-hour week
The FLSA requires time and a half the regular rate for every hour over 40 in a workweek, for employees who are not exempt. There is no federal limit on the number of hours an adult may be scheduled, and no federal rule requiring a break, a weekend or a day off.
The workweek definition
A workweek is 168 hours, seven consecutive days, with a fixed and recurring start. The employer picks the day and hour it begins and does not have to move it, and it need not match the calendar week or the pay period. An employer on a Saturday start and biweekly pay has workweeks that straddle two pay periods, which is legal and very often calculated wrong.
Hours worked
Hours worked means time the employee is required to be on duty, on the premises, or at a prescribed workplace. It includes time suffered or permitted, that is, time the employer knew about or should have known about even if it was never approved in advance. Mandatory training, travel between job sites during the day, and time spent opening up or cashing out all count.
It excludes the ordinary home-to-work commute, bona fide meal periods of 30 minutes or more when the employee is fully relieved, and time genuinely off duty.
What an employer must do
- Pay at least the minimum for all hours worked in the workweek.
- Pay the half-time premium on hours over 40 in that same workweek.
- Keep records of daily and weekly hours, the regular rate, and the basis of pay.
- Not average two weeks together. A 50-hour week and a 30-hour week is 10 overtime hours, not 80 divided by two.
Comp time
Private employers may substitute paid time off at the overtime rate only under a prior agreement and only if it is at least one and a half hours off for each overtime hour, taken in the same pay period where possible. Public agencies have broader latitude.
Unpaid overtime is recoverable for two years, three if wilful, with matching liquidated damages.