The Fair Labor Standards Act, enacted in 1938, was meant to curtail “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” The Act mandates that overtime, i.e. “time-and-a-half,” be paid to nonexempt workers who exceed 40 hours of work during a standard workweek.

 The Act defines a workweek as “a fixed and regularly recurring period of 168 hours—seven consecutive 24-hour periods. It need not coincide with the calendar week, but may begin on any day and at any hour of the day.” Being asked to work on a weekend or a holiday does not automatically qualify someone for overtime pay—any special payment for hours worked on nights and weekends (for example, “double time”) is by agreement between employer and employee. However, the requirement to pay overtime cannot be waived, cannot be contracted out of by employer and employee and cannot be denied by insisting that the overtime work should have been authorized in advance.

Overtime rates must be determined from the base average hourly non-overtime rate. Merely paying a lump sum for extra work is not sufficient, even if the lump sum divided by the hours worked is equal or greater to the requisite overtime rate.

To receive overtime pay, you must not be an “exempt” employee. Section 13(a) of the FLSA (29 USC § 213) defines an exempt employee as:

any employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools), or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary…

The Department of Labor has promulgated a set of rules to assist in determining what positions are qualified as exempt. An explanation of these rules can be found here. [Update: This link is broken, probably because a court decision has created uncertainty about the status of these regulations.]  Almost all the exempted categories are white-collar positions, while almost all blue-collar workers are nonexempt.

If an employee is denied overtime pay to which he or she was rightfully entitled the employee can bring a lawsuit to recover double the overtime that should have been paid and attorneys’ fees.  It is illegal to fire a worker who insists that he or she be paid the overtime to which the employee is entitled.

The Kaplan Law Firm represents individuals who have not been paid overtime or who have been harmed by other violations of the Fair Labor Standards Act, such as a failure to pay the minimum wage or a complete failure to pay wages owed to an employee.  We do not charge for an initial consultation and, in most cases, we do not charge our clients anything for our services in these matters.  We also represent employers who are alleged to have violated the Fair Labor Standards Act. You may contact us by email at info@thekaplanlawfirm.com or by telephone at (703) 665-9529.