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The Fair Labor Standards Act (“FLSA”) requires that covered, nonexempt employees in the United States be paid at least the Federal minimum wage for each hour worked and receive overtime pay at one and one-half times the employee’s regular rate of pay for all hours worked over 40 in a workweek. Seems simple, right? But here are examples of where it gets complicated.

When An Employee Works Overtime Without Permission:

An announcement by the employer that no overtime work will be permitted, or that overtime work will not be paid unless the employee has prior authorization, will not impair the employee’s right to compensation for compensable overtime hours that are worked. If an employee works overtime, you must pay them for it. You may reprimand the employee according to your businesses disciplinary procedures, but you may not withhold the overtime pay.

Averaging Hours:

Averaging hours for the purpose of calculating overtime is prohibited. Each workweek must be considered separately in determining overtime hours, regardless of the length of the pay period. Therefore, time over 40 hours worked in one week may not be offset against time under 40 hours worked in another week—except for certain arrangements permitted for hospital and nursing home employees, firefighters, and law enforcement personnel.

Calculating Overtime:

For hourly employees, the overtime rate is one and a half times their regular hourly rate. The regular rate must include bonuses that depend on the quality, quantity, or efficiency of work, the reasonable cost of meals, lodging, and other facilities provided to employees for the convenience of the employer; and commission payments.

Hours Worked:

Only hours actually worked count in the overtime calculation. Therefore, holidays not worked, vacation days, sick days, and so forth, are not counted. The fact that employees receive holiday pay, vacation pay, or sick pay is of no consequence for overtime purposes. The test is hours worked rather than hours paid.


When in doubt, pay the overtime! An overtime violation can turn be very expensive to defend. If you have any questions about how to properly compensate your employees, please contact Meglino Law at 407-900-7440.



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