Under the Fair Labor Standards Act of 1938 (FLSA), those employers who allow or require their employees to work overtime are generally required to pay them at a premium rate for their services. The FLSA, however, does not apply to all workers. Specifically excluded from the scope of the FLSA are…
• Independent contractors,
• Executive, administrative, or professional employees
• Certain highly compensated employees (earning at least $100,000 per year)
• Certain workers in the computer industry
• Many agricultural or seasonal workers
• Certain household employees.
Recently, the Department of Labor issued “FairPay” regulations to guarantee that certain lower paid workers could not be deprived of overtime pay under an executive, administrative, or professional exemption. Under the FairPay rules, employees earning less than $23,660 per year ($455 per week) are guaranteed overtime protection.
Although the FLSA does not place a limit on the number of hours that workers over the age of 15 may work in a given week, it does guarantee those workers a higher wage for any hours worked in excess of 40 hours per week. These workers must be paid at least 150 percent of their regular hourly pay for those hours worked in excess of 40. As long as the number of hours worked does not exceed 40 in a given week, employers are not required to pay overtime wages, even for hours worked during holidays or weekends.
The FLSA calculates a work week based upon a fixed, regularly occurring period of 168 hours, or seven consecutive periods of 24 hours. A work week does not have to begin or end on a particular day of the week. Employers may establish different work weeks for different types of employees. Once an employer has established a work week, however, the FLSA calculates employees’ hours based upon that schedule. Employers may not average an employee’s work hours over a period larger than one week. If an employee worked more than 40 hours in any given work week, he or she is entitled to overtime pay. The employer must pay overtime pay at the regular pay day.
The FLSA overtime pay requirements do not impact the FLSA minimum wage requirements. In other words, an employee’s regular hourly pay must always meet minimum wage requirements. An employer may not take total pay for a week and divide it by the number of hours worked to determine whether the minimum wage requirement has been met. Overtime pay must always equal at least one and one-half times the minimum wage if an employee is being paid minimum wage.
Employees may not waive their rights to overtime pay under the FLSA. Employers are also required to pay employees for actual overtime worked, regardless of any policy stating that overtime work will not be permitted.
Employers must strictly comply with the requirements of the FLSA. Employers may not, for example, offer employees a lump sum for working an extra day, regardless of whether the lump sum would actually exceed the employees’ time and one-half rate. In other words, overtime pay must always be calculated on a per hour basis. Of course, employers are free to pay employees more than time and one-half for any overtime hours worked if they so choose.
If you or a loved one believes that you have not been fairly compensated according to the FLSA overtime guidelines, contact The Law Offices of Larry H. Parker today at (800) 333-0000 for a free consultation.