Who Is Entitled to Overtime Pay?
Under the federal Fair Labor Standards Act, non-exempt employees must be paid at least one and a half times their regular rate for hours over 40 in a workweek. Many salaried employees are exempt only if they are paid at least $684 a week and perform qualifying executive, administrative or professional duties. Job titles and salary alone do not decide it. Some states require daily overtime or set higher thresholds.
Overtime rules are among the most commonly violated employment laws, often because employers misunderstand who is exempt.
The basic rule
Covered, non-exempt employees must receive overtime at one and a half times their regular rate of pay for hours worked over 40 in a workweek (29 U.S.C. 207; DOL). Each workweek stands alone; hours cannot be averaged over two weeks.
Exempt vs. non-exempt
Most white-collar exemptions require all three:
- Salary basis: a predetermined salary not reduced for quality or quantity of work.
- Salary level: at least $684 per week ($35,568 per year) under the currently enforced federal rule (29 CFR 541.600). A 2024 rule that raised this level was vacated by a federal court.
- Duties test: primarily executive, administrative, professional, computer or outside sales work as defined by DOL (Fact Sheet 17A).
Other exemptions exist for certain industries and highly compensated employees.
Common myths
- "Salaried workers never get overtime." False. Salaried workers who fail the duties or salary tests are non-exempt.
- "My title says manager." Titles do not matter; duties do.
- "We give comp time instead." Private employers generally cannot substitute comp time for overtime pay.
- "Overtime wasn't approved." If the employer knew or should have known you worked, it must pay, though it can discipline you for violating rules.
The regular rate
Overtime is based on the regular rate, which includes most bonuses, commissions and shift differentials, not just the base hourly wage.
State rules
Some states have more protective rules, such as daily overtime after 8 hours (for example, California) or higher salary thresholds for exemption. Employers must follow whichever rule is more favorable to workers.
Taxes
A federal deduction for qualified overtime pay is available for 2025 through 2028. See is overtime taxed in 2026.
If you were not paid
You can file a complaint with the DOL Wage and Hour Division or a state agency, or sue. The FLSA statute of limitations is generally two years, or three for willful violations, and successful workers can recover back pay plus an equal amount in liquidated damages and attorney fees. See how to get unpaid wages. An employment lawyer can evaluate your classification.
Sources
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This article is general legal information, not legal advice, and reading it does not create an attorney-client relationship. Laws differ by state and change over time; talk to a licensed attorney in your state about your situation.
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