Law Blog

Labor Law: Overtime Pay


Under the FLSA, there are no limits to the number of hours an employer may require an employee to work in one day or week. However, employers are required to pay employees an overtime rate of one-and-a-half (1 1/2) times their regular rate for all hours worked in that week beyond the standard 40 hours, unless some exemption applies. 29 CFR 778.107.

Said differently, as long as an non-exempt employee does not work more than 40 hours in a week, the employer is not required to pay overtime even if (i) the employee works more than eight (8) hours in one day, or (ii) the employee works on a holiday, a Saturday, or a Sunday.

So,  to calculate the appropriate amount of overtime owed to an employee, determine the employee’s regular rate and hours worked by the employee in the applicable week.

Exempt Employees

Most employers must pay  employees overtime pursuant to the Fair Labor Standards Act (FLSA). However, there are some categories of employees that are exempt from overtime pay. Section 213(b) of the Fair Labor Standards Act (FLSA) provides for several exemptions from its overtime requirements. 29 USC 213

(a) Minimum wage and maximum hour requirements 

The provisions of sections 206 (except subsection (d) in the case of paragraph (1) of this subsection) and 207 of this title shall not apply with respect to—

(1) any employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools), or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary, subject to the provisions of subchapter II of chapter 5 of title 5, except that an employee of a retail or service establishment shall not be excluded from the definition of employee employed in a bona fide executive or administrative capacity because of the number of hours in his workweek which he devotes to activities not directly or closely related to the performance of executive or administrative activities, if less than 40 per centum of his hours worked in the workweek are devoted to such activities); or

(3)  any employee employed by an establishment which is an amusement or recreational establishment, organized camp, or religious or non-profit educational conference center, if (A) it does not operate for more than seven months in any calendar year, or (B) during the preceding calendar year, its average receipts for any six months of such year were not more than 33⅓ per centum of its average receipts for the other six months of such year, except that the exemption from sections 206 and 207 of this title provided by this paragraph does not apply with respect to any employee of a private entity engaged in providing services or facilities (other than, in the case of the exemption from section 206 of this title, a private entity engaged in providing services and facilities directly related to skiing) in a national park or a national forest, or on land in the National Wildlife Refuge System, under a contract with the Secretary of the Interior or the Secretary of Agriculture; or

(5)  any employee employed in the catching, taking, propagating, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacea, sponges, seaweeds, or other aquatic forms of animal and vegetable life, or in the first processing, canning or packing such marine products at sea as an incident to, or in conjunction with, such fishing operations, including the going to and returning from work and loading and unloading when performed by any such employee; or

(6)  any employee employed in agriculture (A) if such employee is employed by an employer who did not, during any calendar quarter during the preceding calendar year, use more than five hundred man-days of agricultural labor, (B) if such employee is the parent, spouse, child, or other member of his employer’s immediate family, (C) if such employee (i) is employed as a hand harvest laborer and is paid on a piece rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece rate basis in the region of employment, (ii) commutes daily from his permanent residence to the farm on which he is so employed, and (iii) has been employed in agriculture less than thirteen weeks during the preceding calendar year, (D) if such employee (other than an employee described in clause (C) of this subsection) (i) is sixteen years of age or under and is employed as a hand harvest laborer, is paid on a piece rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece rate basis in the region of employment, (ii) is employed on the same farm as his parent or person standing in the place of his parent, and (iii) is paid at the same piece rate as employees over age sixteen are paid on the same farm, or (E) if such employee is principally engaged in the range production of livestock; or

(7)  any employee to the extent that such employee is exempted by regulations, order, or certificate of the Secretary issued under section 214 of this title; or

(8)  any employee employed in connection with the publication of any weekly, semiweekly, or daily newspaper with a circulation of less than four thousand the major part of which circulation is within the county where published or counties contiguous thereto; or

(10)  any switchboard operator employed by an independently owned public telephone company which has not more than seven hundred and fifty stations; or

(12)  any employee employed as a seaman on a vessel other than an American vessel; or
(15)  any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as such terms are defined and delimited by regulations of the Secretary); or

(16)  a criminal investigator who is paid availability pay under section 5545a of title 5;

(17) any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker, whose primary duty is—

(A)  the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;

(B)  the design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;

(C)  the design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or

(D)  a combination of duties described in subparagraphs (A), (B), and (C) the performance of which requires the same level of skills, and who, in the case of an employee who is compensated on an hourly basis, is compensated at a rate of not less than $27.63 an hour; or

(18)  any employee who is a border patrol agent, as defined in section 5550(a) of title 5.


Believe it or not, that is about as simple as we can lay it out.  Naturally, it would be wise to consult a labor attorney where any doubt exists.

~ Jeff Harrington, Esq.