The first key concept is that the FLSA sets 40 hours as the regular work week.
Employment law is set by two different levels or types of government in the United States: the federal (or national) government and the state governments. State governments may choose to be more generous than the federal government, but never less (or rather, if the state is less generous, then federal law still provides a minimum level of protection). However, many or most states are not more generous—they choose to provide the same overtime rules as the federal government does, or have no rules of their own and may default to the federal rules. Federal law is most important in this area, covering 130 million workers, and the governing federal law is known as the Fair Labor Standards Act (FLSA). But almost 50 million workers are exempt from FLSA overtime. Sometimes, these exemptions are based on the worker’s industry, but more often, they are based on the nature of the worker’s job or responsibilities.
Even assuming the FLSA applies, there are some significant exceptions, too: hospitals and tip-credit establishments (such as restaurants), for example, may have differing wage calculations. Youth workers 20 and under also have differing work-place restrictions, that may essentially prohibit overtime pay.
The most important concept is “exempt versus nonexempt.” As you might expect, the term “exempt” is meant to indicate exempt from minimum wage requirements, while a “nonexempt” worker is not (non) exempt.
Under federal law, a nonexempt employee must be paid overtime for all hours worked past 40 in a single work week. Under federal law, there is no overtime for working weekends or holidays. There’s also no overtime for working more than 8 hours in a single day (as long as the worker is over 16). The basic obligation under federal law is no more than to pay overtime when a nonexempt employee works more than 40 hours in a workweek.
This means that if someone works on the weekend, even if it’s not his or her normal shift, all that counts is the total number of hours worked that week. If it’s more than 40, overtime is due; if it’s less than 40, it’s not.
Not all employees can earn overtime: exempt employees do not receive overtime. Only nonexempt employees receive overtime. A nonexempt employee is one who is not exempt from the overtime rules.
People often, and incorrectly, confuse nonexempt with “hourly,” and exempt (someone who does not receive overtime) with “salaried.” The result of this confusion is wrongly thinking all hourly employees receive overtime but no salaried employees do. This, however, is not quite right: while it is essentially all hourly workers can earn overtime (unless they are in an exempt industry), it is quite possible for salaried workers to be eligible for overtime, too. To be exempt, it’s generally the case that an employee must be paid on a salary basis and also meet one or more job/duty-related tests. The most common exemptions are—
If someone does not meet all the criteria for an exemption, he or she must be paid overtime, regardless of whether he or she is paid an annual salary or hourly wage.
Conclusion
Someone is nonexempt (and therefore eligible for overtime) and works more than 40 hours in a week will earn overtime. Working less than 40 hours in a work week has no effect under federal law, regardless of when those hours were worked. If an employer refuses to pay due wages, many states also grant treble damages for the total wages owed. Thus, employees need to check their state’s laws, too. As mentioned above, some states—California for example—are more generous about when they require overtime to be paid. California requires overtime for working more than 8 hours in a single day, even if fewer than 40 have been worked for the week.
Finally, independent contractors are exempt from overtime—only employees earn overtime. With a difficult economy, more and more workers are willing to accept this less protected classification.