When Is Overtime Pay Required on Weekends?
The United States operates as a federal system of government. But there are also 50 states with their own sets of laws and regulations--—controlling many of the same situations. Federal law applies across the entire 50 states. State law applies only to the state you live in.
One of the many areas where both federal and state law intersect is employment law. Since there are 50 states, there are 50 different sets of state laws; while many follow the same general precepts, they may make overtime available when federal law does not. Because there is no “one-size-fits-all” answer with regard to state law, this article focuses on federal law
You are strongly recommended to review your state’s law to see if it allows you to receive overtime when federal law does not require it. State law cannot take away federal rights, but can extend them. You are always entitled to overtime when federal law says you are, and may in addition get it under other or additional circumstances if your state law is broader in scope. Check with your state’s Department of Labor to find out the laws that apply to overtime work and pay.
The Fair Labor Standards Act (FLSA)
The main federal law is known as the Fair Labor Standards Act (FLSA). The FLSA entitles most employees to receive overtime, but not all. According to the U.S. Department of Labor, approximately 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 federal wage law applies, there are some significant exceptions, too:
(1) some industries, like hospitals and tip-credit establishments (such as restaurants) may have differing wage calculations.
(2) youth workers 20 and under also have differing work-place rules, which may essentially prohibit overtime pay.
Critically, the overtime laws only apply to employees, but not all workers are employees. Independent contractors are exempt from overtime (just as they typically also do not receive employee benefits, like paid vacation or health insurance).
The most important overtime concept is “exempt versus nonexempt.” The term “exempt” is meant to indicate someone who is not eligible for (or exempt from) overtime— unless his or her employer voluntarily chooses to be more generous than legally required and pay overtime when they do not have to. A “nonexempt” worker is eligible for overtime.
A key concept is that the FLSA sets 40 hours as the regular work week. Under federal law, a nonexempt employee must be paid overtime for all hours worked past 40 in a single work week. Overtime under the FLSA is based on weekly hours, not hours worked in any single day, or when during the week you worked. Therefore, 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 only 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.
Employees Not Entitled to Overtime: 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 that all hourly employees receive overtime but no salaried employees do.
This, however, is not quite right. While 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, an employee must be paid on a salary basis; must earn a minimum of (at present) $455.00 per week; and also meet one or more job/duty-related tests. The most common job/duty-related exemptions are—
- the “executive” (or managerial) exemption;
- the administrative exemption (which applies to high-level administrative staff, who exercise considerable authority and discretion); and
- the professional exemption (which typically applies to people with advanced degrees or professional training, like lawyers, accountants, engineers, doctors, or scientists, or to certain creative staff, like some graphic artists, or to some high-level computer or IT professionals).
If someone does not meet all the criteria for an exemption, he or she must be paid overtime—or extra money for working more than 40 hours in a single workweek—regardless of whether he or she is paid an annual salary or an hourly wage.
Someone who 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. So a nonexempt employee working weekends will not earn overtime unless he or she works more than 40 hours that week.
The penalties for violating overtime law can be serious for employers. If an employer fails to pay overtime when due, both federal law and many states’ laws grant the affected employee(s) additional compensation, up to treble (triple) damages (i.e., paying up to three times the unpaid overtime) plus attorney’s fees. Thus, employers as well as employees need to check not just federal law but also their state’s laws to ensure compliance. This is especially true because some states require overtime much more frequently than the federal FLSA does. California, for example, requires overtime for working more than 8 hours in a single day, even if fewer than 40 have been worked for the week. It even requires double time (the “standard” overtime rate of pay is time-and-half of the employee’s regular rate of pay) for working more than 12 hours in a day.