How do I calculate overtime pay?
Any discussion regarding overtime pay calculations in employment law should begin with a general rule. Generally speaking, employers must pay overtime compensation to workers at a rate of “time-and-a-half,” or one and one-half times their regular rate of pay, for each hour worked over 40 hours per workweek. This rule is established by the Fair Labor Standards Act of 1938 (FLSA), and covers most workers.
Some employees qualify for a FLSA exemption. However, employers routinely misclassify their employees as exempt, paying them on the basis of salary plus commission, or straight salary. Just because an employer may announce that no overtime work is permitted, or must be authorized in advance, does not invalidate a worker’s right to collect unpaid compensation for overtime hours worked.
Naturally, employers do have the ability to run their business and utilize some discretion as to when and how employees work. At their discretion, the work week can begin at any hour of any day of the calendar week. Within that constraint, however, it must be a fixed and recurring period of seven consecutive days and nights. This prevents employers from, for example, under calculating hours worked in a given week by averaging several weeks together. Instead, anything over 40 hours per seven-day period counts as overtime. Private employers are not permitted to give “comp time” (meaning time off during the next week) in lieu of overtime compensation.
The FLSA also requires employers to maintain records of workers’ schedules. If you bring an overtime claim against a current or former employer, and they have not maintained such records, then the court may reasonably proceed based on a good-faith estimation of your hours worked over the previous two or three years.
Here’s how this important federal legislation applies to different types of workers. As always, consult an attorney to see how the law may apply to your situation.
As stated above, workers who are paid by the hour are entitled to pay equal to one and one-half times their regular hourly rate for all work over 40 hours per workweek.
Employees Paid on Piecework Basis
This type of employee is entitled to one-half of their regular rate of pay for all hours over 40 per week, in addition to full piecework earnings. In this scenario, the regular rate of pay is determined by dividing the employee’s total weekly earnings by the total hours worked in that pay period. From that rate, the applicable half-time rate can then be calculated and applied.
For salaried workers, overtime pay is calculated in a similar manner as piecework employees. Whether paid on salary for a regular or specified number of hours per workweek, the regular rate of pay is determined by dividing the total weekly earnings by the total number of hours that pay is intended to compensate. Employees who do qualify for protections under FLSA may be entitled, as explained above, to an additional one-half times their regular rate of pay for each hour over 40, in addition to their already-received regular salary.
What About Weekend and Holiday Hours?
Unfortunately, under FLSA, hours worked on Saturday, Sunday, or the “weekend” portion of the employee’s fixed, recurring work week do not automatically qualify as overtime hours. The critical factor is whether or not those work hours exceeded 40 in that workweek (meaning seven day period), in which case the worker would be entitled to overtime pay.
Finally, it’s crucial to emphasize that by law, your rights under FLSA cannot be waived. Your rights under the FLSA cannot be taken away by your employer through some kind of employment agreement, or any other method. Whatever pay or incentive structure you have, as long as your pay structure and job responsibilities do not exempt you from overtime under FLSA, then you may still be entitled to recover overtime pay for appropriate hours worked.
Do I Qualify to Receive Back Pay Overtime?
The only way you can truly understand your situation is to get an in-depth look at your case with the help of a legal expert. The employee rights attorneys at Wenzel Fenton Cabassa, P.A., are experienced at reading classification laws and interpreting your rights as an employee. Schedule a free confidential consultation with an employment lawyer today.