If an employee's salary is based on 45 hours per week and an employee works more than that, do we owe the employee more for the extra hours?

January 12, 2017
If an employee's salary is based on 45 hours per week and an employee works more than that, do we owe the employee more for the extra hours?

If your employee is an exempt salaried employee, under the Fair Labor Standards Act, you aren't required to pay overtime for extra hours.

How to Determine Exempt FLSA Status

You can determine if your employees are exempt from the FLSA overtime rules by looking at 2 key things:

  • They are paid at least $455 per week on a salary or fee basis; and

  • They perform exempt job duties

Nonexempt FLSA Status

If your employee doesn't pass the test for exempt status, you're required by federal law to pay overtime hours for any time worked in excess of 40 hours a week. For example, if your non-exempt employee works 45 hours per week, they would be entitled to 5 hours paid at time and a half, not including any additional hours worked beyond 45.

State Laws May be Different

Some states have laws that extend the rights under the Fair Labor Standards Act, and these can oftentimes be more rigorous than federal laws.

For example, New York extends overtime to some occupations that are considered exempt under the FLSA, regardless of the amount of their regular pay rate.

For other states, this list can be a helpful guide.

FLSA Final Rule

On November 22, 2016, a federal court put a hold on the Department of Labor's increase to the minimum salary requirement for the Executive, Administrative, and Professional exemption under the Fair Labor Standards Act, which was scheduled to take effect on December 1, 2016. This is currently pending legal action.

Final Tips

Ultimately, the Fair Labor Standards Act doesn't trump state laws, and employees are subject to whichever law, state or federal, provides the highest pay for overtime. Be sure to check with your specific state laws to ensure full compliance.

Helpful Links:

Overtime Pay Basics - DOL.gov

Fact Sheet on Exemptions under FLSA - DOL.gov

Handy Reference Guide to FLSA - DOL.gov

DOL's Final Rule - DOL.gov

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