U.S. Department of Labor 

Employment Standards Administration 

Wage and Hour Division 

 (Revised July 2008) 

Fact Sheet #23: Overtime Pay Requirements of the FLSA 

This fact sheet provides general information concerning the application of the overtime pay provisions of the 

FLSA.

Characteristics 

An employer who requires or permits an employee to work overtime is generally required to pay the employee 

premium pay for such overtime work. 

Requirements 

Unless specifically exempted, employees covered by the Act must receive overtime pay for hours worked in 

excess of 40 in a workweek at a rate not less than time and one-half their regular rates of pay. There is no limit 

in the Act on the number of hours employees aged 16 and older may work in any workweek. The Act does not 

require overtime pay for work on Saturdays, Sundays, holidays, or regular days of rest, as such. 

The Act applies on a workweek basis. An employee's workweek is 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. Different workweeks may be established for different employees or groups of 

employees. Averaging of hours over two or more weeks is not permitted. Normally, overtime pay earned in a 

particular workweek must be paid on the regular pay day for the pay period in which the wages were earned. 

The regular rate of pay cannot be less than the minimum wage. The regular rate includes all remuneration for 

employment except certain payments excluded by the Act itself. Payments which are not part of the regular rate 

include pay for expenses incurred on the employer's behalf, premium payments for overtime work or the true 

premiums paid for work on Saturdays, Sundays, and holidays, discretionary bonuses, gifts and payments in the 

nature of gifts on special occasions, and payments for occasional periods when no work is performed due to 

vacation, holidays, or illness. 

Earnings may be determined on a piece-rate, salary, commission, or some other basis, but in all such cases the 

overtime pay due must be computed on the basis of the average hourly rate derived from such earnings. This is 

calculated by dividing the total pay for employment (except for the statutory exclusions noted above) in any 

workweek by the total number of hours actually worked. 

Where an employee in a single workweek works at two or more different types of work for which different 

straight-time rates have been established, the regular rate for that week is the weighted average of such rates. 

That is, the earnings from all such rates are added together and this total is then divided by the total number of 

hours worked at all jobs. In addition, section 7(g)(2) of the FLSA allows, under specified conditions, the 

computation of overtime pay based on one and one-half times the hourly rate in effect when the overtime work 

is performed. The requirements for computing overtime pay pursuant to section 7(g)(2) are prescribed in 29 

CFR 778.415 through 778.421. 
Where non-cash payments are made to employees in the form of goods or facilities, the reasonable cost to the 

employer or fair value of such goods or facilities must be included in the regular rate. 

Typical Problems 

Fixed Sum for Varying Amounts of Overtime: A lump sum paid for work performed during overtime hours 

without regard to the number of overtime hours worked does not qualify as an overtime premium even though 

the amount of money paid is equal to or greater than the sum owed on a per-hour basis. For example, no part of 

a flat sum of $180 to employees who work overtime on Sunday will qualify as an overtime premium, even 

though the employees' straight-time rate is $12.00 an hour and the employees always work less than 10 hours on 

Sunday. Similarly, where an agreement provides for 6 hours pay at $13.00 an hour regardless of the time 

actually spent for work on a job performed during overtime hours, the entire $78.00 must be included in 

determining the employees' regular rate. 

Salary for Workweek Exceeding 40 Hours: A fixed salary for a regular workweek longer than 40 hours does not 

discharge FLSA statutory obligations. For example, an employee may be hired to work a 45 hour workweek for 

a weekly salary of $405. In this instance the regular rate is obtained by dividing the $405 straight-time salary by 

45 hours, resulting in a regular rate of $9.00. The employee is then due additional overtime computed by 

multiplying the 5 overtime hours by one-half the regular rate of pay ($4.50 x 5 = $22.50). 

Overtime Pay May Not Be Waived: The overtime requirement may not be waived by agreement between the 

employer and employees. An agreement that only 8 hours a day or only 40 hours a week will be counted as 

working time also fails the test of FLSA compliance. An announcement by the employer that no overtime work 

will be permitted, or that overtime work will not be paid for unless authorized in advance, also will not impair 

the employee's right to compensation for compensable overtime hours that are worked. 

Where to Obtain Additional Information 

For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov

and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-

4USWAGE (1-866-487-9243).

This publication is for general information and is not to be considered in the same light as official statements of 

position contained in the regulations. 

U.S. Department of Labor

Frances Perkins Building 

200 Constitution Avenue, NW 

Washington, DC 20210 

1-866-4-USWAGE

 TTY: 1-866-487-9243

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