The Federal Floor: FLSA Overtime Requirements
The short answer is 1.5x after 40 hours — that's 29 U.S.C. § 207, the federal floor. States can go higher, but never lower. The FLSA reaches employers with at least $500,000 in annual gross sales plus every hospital, school, and government agency regardless of revenue, which in practice covers the overwhelming majority of U.S. workers. Federal minimum wage sits at $7.25/hour, and the exempt-status salary threshold is currently $684/week (roughly $35,568/year). Read the numbers carefully — getting those two thresholds wrong is how employers misclassify people.
The "regular rate of pay" is not always the same as your hourly wage. Under the FLSA, the regular rate includes your base hourly rate plus most forms of additional compensation: shift differentials, non-discretionary bonuses, commissions, and piece-rate earnings. Discretionary bonuses and gifts are excluded. The Department of Labor's Wage and Hour Division (WHD) provides detailed guidance on calculating the regular rate, including fact sheets and opinion letters that address specific compensation arrangements.
A critical concept is the "workweek." Under the FLSA, overtime is calculated on a workweek basis — a fixed, recurring period of 168 consecutive hours (7 days). Your employer defines the workweek, and it does not have to align with the calendar week. Hours cannot be averaged across multiple workweeks. If you work 50 hours in week one and 30 hours in week two, you are owed 10 hours of overtime for week one — your employer cannot average the two weeks to 40 hours each and avoid overtime. Use our overtime pay calculator to see what you should be earning.
Who Is Exempt from Overtime: The Three Main Tests
Not every employee is entitled to overtime pay. The FLSA creates exemptions for employees who meet specific salary and duties tests. The three most common exemptions are the executive exemption (for managers who supervise two or more employees and have authority to hire and fire), the administrative exemption (for office workers who exercise independent judgment on significant business matters), and the professional exemption (for employees in recognized professional fields requiring advanced knowledge, such as law, medicine, engineering, and accounting). To qualify for any of these exemptions, the employee must be paid on a salary basis at a minimum threshold — currently $684 per week ($35,568 annually) as of 2024, though the Department of Labor has proposed increasing this threshold.
The salary threshold alone does not make you exempt. You must also satisfy the duties test for one of the exemption categories. This is where employers most frequently get it wrong — and where employees are most often misclassified. Having a managerial title does not make you exempt if your primary duties do not involve genuine managerial functions. An "assistant manager" who spends 90% of their time on the same tasks as hourly employees is likely misclassified as exempt and may be owed years of unpaid overtime. The DOL Fact Sheet #17A details the exemption requirements.
Other exemptions cover outside sales employees, certain computer professionals, and highly compensated employees (those earning at least $107,432 annually who perform at least one exempt duty). There are also industry-specific exemptions for certain agricultural, transportation, and retail workers. If you are classified as exempt but believe you should be receiving overtime, you have the right to file a complaint with the Wage and Hour Division — the investigation is confidential, and retaliation against employees who file complaints is prohibited under 29 U.S.C. § 215(a)(3).
State Overtime Laws That Go Beyond Federal Requirements
Several states provide overtime protections that exceed the federal FLSA standard. California is the most notable example — in addition to the standard 40-hour weekly overtime threshold, California requires daily overtime: time-and-a-half for hours worked beyond 8 in a single day, and double time for hours worked beyond 12 in a single day or beyond 8 on the seventh consecutive day worked in a workweek (California Labor Code § 510). This means a California employee who works four 12-hour days (48 hours) is owed 16 hours of daily overtime, even though the weekly total exceeds 40 by only 8 hours.
Alaska, Nevada, and Colorado also have daily overtime requirements, though the thresholds and rates vary. Colorado requires overtime after 12 hours in a day or 40 hours in a week. Nevada requires overtime after 8 hours in a day for employees earning less than 1.5 times the minimum wage. These state laws apply in addition to the FLSA, and when both federal and state overtime rules apply, the employee is entitled to whichever calculation produces the higher pay. The DOL's state labor office directory provides links to each state's wage and hour agency.
Some states also have different salary thresholds for overtime exemptions. New York and California, for example, set exempt salary thresholds significantly higher than the federal level. In California, the salary threshold for exempt status is twice the state minimum wage for a full-time employee, which works out to approximately $66,560 annually as of 2024 — nearly double the federal threshold. This means many employees who are classified as exempt under federal law are actually nonexempt under state law and entitled to overtime.
Common Overtime Violations and How to Spot Them
Overtime violations are among the most widespread wage and hour infractions in the American workplace. The Department of Labor recovers hundreds of millions of dollars in unpaid overtime each year, and private lawsuits add billions more. The most common violations include misclassifying nonexempt employees as exempt (the "salary = no overtime" myth), failing to pay for work performed before or after shifts (donning and doffing protective gear, booting up computer systems, attending mandatory meetings), requiring "off the clock" work (checking emails, taking phone calls, completing paperwork from home), and improperly rounding time entries to reduce compensable hours.
Another common violation involves tipped employees. Under the FLSA, employers who take a tip credit must still pay tipped employees the full overtime rate based on the full minimum wage — not the reduced tipped minimum wage. If a tipped server works 50 hours in a week, their overtime rate is 1.5 times the full minimum wage ($7.25 federally), not 1.5 times the tipped wage ($2.13 federally). Many restaurants get this calculation wrong, resulting in significant underpayment. The DOL Fact Sheet #15 explains the rules for tipped employees in detail.
If you suspect your employer is violating overtime laws, start by documenting your hours carefully. Keep a personal log of when you clock in and out, when you perform work activities before or after your official shift, and any time you work from home or during breaks. Compare your records to your pay stubs. If the numbers do not match, you may have a claim for unpaid overtime. Our guide on filing a wage complaint with the DOL walks you through the process of reporting violations.
How to Calculate What You Are Owed
Calculating unpaid overtime starts with determining your regular rate of pay, which includes your base hourly wage plus any non-discretionary bonuses, shift differentials, and commissions earned during the workweek. Divide your total straight-time compensation for the week by the total hours worked to get the regular rate. Then multiply the regular rate by 1.5 to get the overtime rate, and multiply that by the number of overtime hours worked. For salaried nonexempt employees, divide the weekly salary by 40 to get the regular hourly rate.
Use our overtime pay calculator to run the numbers for your specific situation. Enter your hourly rate or weekly salary, the number of hours worked, and your state — the calculator will apply the correct overtime formula, including state-specific daily overtime rules where applicable. The calculator shows both what you should have been paid and the shortfall if your employer paid only straight time.
Under the FLSA, you can recover unpaid overtime going back two years — or three years if the violation was willful (meaning the employer knew or should have known it was violating the law). In addition to the unpaid overtime itself, the FLSA provides for liquidated damages equal to the unpaid amount (effectively doubling your recovery), plus attorney's fees and court costs. State laws may provide even longer statutes of limitations and additional penalties. A worker who has been underpaid by $200 per week for three years has a claim worth approximately $31,200 in unpaid overtime, plus an equal amount in liquidated damages — over $62,000 before attorney's fees.
Filing a Complaint or Lawsuit for Unpaid Overtime
You have two primary options for pursuing unpaid overtime. First, you can file a complaint with the Department of Labor's Wage and Hour Division. The WHD will investigate your employer, and if it finds violations, it can order the employer to pay back wages, assess penalties, and in some cases, bring a lawsuit on your behalf. The investigation is confidential, and your employer is prohibited from retaliating against you for filing a complaint. WHD investigations often uncover violations affecting multiple employees, which can result in company-wide back pay orders.
Second, you can hire an employment attorney and file a private lawsuit under the FLSA or your state's wage and hour law. Private lawsuits allow you to seek liquidated damages (double the unpaid amount), attorney's fees, and court costs. If multiple employees at the same company were subjected to the same overtime violation — for example, an entire class of "assistant managers" who were misclassified as exempt — the case can be brought as a collective action under the FLSA (similar to a class action), which increases the total recovery and the pressure on the employer to settle.
The two options are not mutually exclusive in all cases, but filing a DOL complaint while simultaneously pursuing a private lawsuit requires careful coordination. Most employment attorneys offer free consultations and handle overtime cases on contingency, meaning you pay nothing upfront and the attorney takes a percentage of the recovery only if you win. For a detailed guide on reporting wage violations, see our article on filing a wage complaint with the DOL. And for an estimate of your potential recovery, try our overtime pay calculator.
Protecting Yourself from Overtime Theft
The best protection against overtime theft is careful, contemporaneous record-keeping. Even though your employer is legally required to maintain accurate time records under the FLSA, many employers do not — and in disputes, your own records can fill the gap. Use a simple spreadsheet, a time-tracking app, or even a handwritten notebook to record your start time, end time, and any work performed during breaks or from home. Photograph your time cards or time clock entries before they are submitted. Save emails, text messages, and voicemails that document requests to work off the clock.
Know your classification. If you are told you are "salaried and exempt" from overtime, ask which specific FLSA exemption applies and review the DOL fact sheets for that exemption. If your actual job duties do not match the exemption criteria — for example, you spend most of your time doing the same work as hourly employees, or you do not supervise anyone — you may be misclassified and entitled to overtime regardless of your salary. Misclassification is not always intentional; many employers genuinely do not understand the exemption rules.
If you raise overtime concerns with your employer and are met with retaliation — reduced hours, demotion, termination, or hostile treatment — you have additional legal protections. The FLSA's anti-retaliation provision (29 U.S.C. § 215(a)(3)) prohibits employers from disciplining or terminating employees who assert their rights under the Act. For more on your rights if you are fired in connection with a wage complaint, see our guide on wrongful termination and our article on workplace retaliation.
Disclaimer: This article is for general educational purposes only and does not constitute legal advice. Made For Law is not a law firm, and our team are not attorneys. We are not affiliated with any federal, state, county, or local government agency or court system. Content may be researched or drafted with AI assistance and is reviewed by our editorial team before publication. Laws change frequently — always verify information with official sources and consult a licensed attorney for advice specific to your situation. Full disclaimer
- 29 U.S.C. § 207law.cornell.edu
- Wage and Hour Division (WHD)dol.gov
- Department of Labordol.gov
- DOL Fact Sheet #17Adol.gov
- Wage and Hour Divisiondol.gov
- DOL's state labor office directorydol.gov
- Department of Labordol.gov
- DOL Fact Sheet #15dol.gov
- DOL fact sheetsdol.gov
Our editorial team researches and summarizes publicly available legal information. We are not attorneys and do not provide legal advice. Every article is checked against current state statutes and official sources, but you should always consult a licensed attorney for guidance specific to your situation.
