A complete guide to FLSA overtime requirements - who qualifies, how overtime pay is calculated, the three main exemptions, state laws that go further, and common employer violations.
Last updated: April 2026 · Data: IRS, BLS, state sources
Note: This guide is for informational purposes only. Information is current as of 2026 but may change. Always verify requirements with official state and federal government sources before filing.
The Fair Labor Standards Act (FLSA) requires employers to pay eligible employees 1.5 times their regular rate of pay - commonly called "time and a half" - for all hours worked over 40 in a workweek. A "workweek" under the FLSA is defined as any fixed, regularly recurring 168-hour period consisting of seven consecutive 24-hour days. Employers can designate any day of the week as the start of the workweek, and that designation must remain consistent. The workweek definition matters because overtime is calculated per workweek - not per day, not per pay period, and not per month.
One of the most important principles in FLSA overtime law: you cannot average hours across two workweeks to avoid overtime. If an employee works 50 hours in week one and 30 hours in week two, the employer owes 10 hours of overtime for week one - even though the two-week average is exactly 40 hours. Each workweek stands completely on its own for overtime calculation purposes. The FLSA does not require overtime pay specifically for working on weekends, holidays, or evenings unless those hours push the weekly total above 40 - that is a matter of employer policy or state law, not federal law.
Not all workers are entitled to FLSA overtime. Employees are classified as either "non-exempt" (entitled to overtime) or "exempt" (not entitled to FLSA overtime). Most hourly workers are non-exempt and entitled to overtime. To be classified as exempt under any of the white-collar exemptions, an employee must satisfy both a salary test AND a duties test - failing either test means the employee is non-exempt and entitled to overtime regardless of how they are labeled or paid.
The salary test for 2026: To qualify for any white-collar exemption, an employee must be paid at least $684 per week ($35,568 per year) on a salary basis. "Salary basis" means the employee receives a predetermined, fixed amount each pay period that is not subject to reduction based on the quality or quantity of work. If an employee earns below $684 per week, they are non-exempt and entitled to overtime regardless of their job duties. Highly compensated employees (HCEs) earning at least $107,432 per year qualify for a streamlined exemption test requiring only that they perform at least one executive, administrative, or professional duty.
A critical and frequently misunderstood point: simply paying someone a salary does not automatically make them exempt. The duties test must also be satisfied. Many employers classify workers as salaried exempt when their actual job duties do not meet the legal standard - this is a common and costly wage violation.
Executive exemption: The employee's primary duty must be managing the enterprise or a customarily recognized department or subdivision. They must regularly direct the work of at least two or more full-time employees (or the equivalent). They must have the authority to hire or fire other employees, or their suggestions and recommendations about hiring, firing, advancement, or other status changes carry significant weight with management. This exemption is often misapplied to "lead" or "senior" workers who supervise others but lack genuine management authority.
Administrative exemption: The employee's primary duty must be office or non-manual work directly related to the management or general business operations of the employer or its customers. Critically, the employee must exercise discretion and independent judgment with respect to matters of significance - not just follow established procedures, but actually make meaningful decisions. Clerical workers, customer service representatives, and most administrative assistants typically do not qualify for this exemption because they apply procedures rather than exercise true independent judgment on significant business matters.
Professional exemption: This applies to learned professionals whose work requires advanced knowledge in a field of science or learning customarily acquired through a prolonged course of specialized intellectual instruction - including lawyers, doctors, accountants, engineers, architects, pharmacists, and teachers. It also applies to creative professionals whose work requires invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor. Paralegals, technicians, and workers in skilled trades typically do not qualify despite working alongside professionals.
Standard hourly workers: The regular rate equals the hourly wage. The overtime rate is 1.5 times that amount. Example: an employee earning $20/hour who works 48 hours in a week earns: 40 hours × $20 = $800 (straight time) + 8 hours × $30 (overtime rate) = $240. Total pay: $1,040. Simple and straightforward.
Salaried non-exempt workers: The calculation is more nuanced. First, calculate the regular rate by dividing the weekly salary by the total hours worked in that workweek. Then pay an additional 0.5 times the regular rate for each hour over 40 - not 1.5 times, because the salary already covers the straight-time pay for all hours worked. Example: a salaried non-exempt employee earning $800/week who works 50 hours. Regular rate: $800 ÷ 50 = $16/hour. Overtime premium owed: 10 hours × $8 (0.5 × $16) = $80. Total pay for the week: $880.
Workers who receive commissions or bonuses: Non-discretionary bonuses and commissions must be included in the regular rate calculation before computing overtime. If an employee earns a $500 weekly sales commission on top of a $600 base salary and works 50 hours, their regular rate is ($600 + $500) ÷ 50 = $22/hour. The overtime premium is $11/hour × 10 hours = $110 additional. Failing to include bonuses in the regular rate is a common FLSA violation.
Many states have overtime protections that exceed the FLSA's requirements. When federal and state laws conflict, the law more favorable to the employee applies. The most significant state-level enhancement is California's daily overtime requirement: California requires overtime pay for all hours worked beyond 8 in a single day (not just over 40 in a week), and double-time (2 times the regular rate) for all hours beyond 12 in a single day and for all hours on the seventh consecutive day of work in a workweek. An employee working four 12-hour days in California owes overtime for the last 4 hours of each day regardless of the weekly total.
Alaska and Nevada also have daily overtime requirements that kick in after 8 hours in a single day, similar to California's structure (Nevada's daily OT applies only to employees earning below a threshold tied to the minimum wage). Colorado requires overtime after 12 hours in a single day in addition to the weekly 40-hour threshold. In all other states, the FLSA's weekly 40-hour rule is the operative standard. Employers operating in California, Alaska, Nevada, or Colorado must track daily hours carefully in addition to weekly totals and pay overtime accordingly - using only the FLSA weekly standard in these states is a consistent source of wage claims.
The most common and costly FLSA overtime violation is employee misclassification - labeling workers as "exempt" when their actual job duties do not meet the legal standard, or paying them a salary below the $684/week threshold while calling them exempt. The second most common violation is off-the-clock work: requiring or permitting employees to work before they clock in (setup, pre-shift preparation), after they clock out (closing, wrap-up), or during unpaid meal breaks that are actually interrupted by work duties. All such time is compensable and counts toward the 40-hour overtime threshold.
Other frequent violations include: failing to include non-discretionary bonuses, shift differentials, and commissions in the regular rate before calculating overtime; illegal comp-time arrangements in private businesses (only lawful for state and local government employers); and improperly using "fluctuating workweek" or other alternative pay arrangements that do not comply with FLSA requirements. Employees who believe they are owed unpaid overtime have 2 years from the date of the violation to file a claim (3 years for willful violations). Successful claimants can recover back wages plus an equal amount in liquidated damages, effectively doubling the recovery. Claims can be filed directly with the U.S. Department of Labor's Wage and Hour Division at dol.gov/agencies/whd, or through a private lawsuit.
Use our free FLSA overtime calculator to find out exactly what you should be paid for any week, including support for California and other state daily overtime rules.
Use the Overtime Calculator →It depends on whether you are classified as "exempt" under the FLSA. If your salary is below $684 per week ($35,568 per year), you are automatically non-exempt and entitled to overtime regardless of your job title or duties - the salary level test alone disqualifies you from any white-collar exemption. If your salary meets the threshold, your employer must also show your actual job duties satisfy the executive, administrative, or professional duties test. Many salaried workers are incorrectly classified as exempt; if you suspect misclassification, you can file a confidential complaint with the Department of Labor's Wage and Hour Division.
No - not in the private sector. Private employers covered by the FLSA are legally required to pay cash overtime at 1.5 times the regular rate. The only employers legally permitted to offer compensatory time off in lieu of overtime pay are state and local government employers, under a specific provision of the FLSA. Private employers who offer comp time instead of overtime pay are violating federal law, regardless of whether the employee agrees to it - employees cannot legally waive their right to overtime pay.
Yes. When the same employer has you working two different positions, roles, or shifts in the same workweek, all hours are combined for overtime purposes. If you work 25 hours as a cashier and 20 hours as a stocker for the same employer in the same week, you have worked 45 hours and are entitled to 5 hours of overtime pay. The regular rate for the overtime premium is calculated based on a weighted average of the different hourly rates, or you may agree in advance to be paid at the higher of the two rates for overtime hours.
Under the FLSA, you have 2 years from the date of each violation to file a claim for unpaid overtime. If the violation was willful - meaning the employer knew it was violating the FLSA or acted with reckless disregard for the law - the statute of limitations extends to 3 years. This means if your employer has been improperly classifying you as exempt for 4 years, you can generally recover unpaid overtime for the 2 or 3 most recent years, not all four. Many states have longer statutes of limitations for wage claims under state law, which can expand your recovery window further.
No - independent contractors are not covered by the FLSA at all. However, the legal determination of whether a worker is truly an independent contractor or is actually an employee is based on the economic reality of the working relationship, not the label the employer uses. Many workers who are called "contractors" are actually employees under the law based on factors like the degree of the company's control over their work, whether the work is integral to the company's business, and whether the worker has opportunities for profit or loss. Misclassification of employees as independent contractors to avoid overtime obligations is illegal and has resulted in significant DOL enforcement actions and class-action lawsuits.