Woman, who is exempt from FLSA overtime pay,  working on her computer at night.


Who is eligible for overtime pay under the FLSA?

You may have heard of the Fair Labor Standards Act (FLSA), but do you know who is actually eligible for FLSA overtime pay under this law?

Well, in many cases it comes down to whether the FLSA considers the employee "exempt" or "non-exempt" — with only non-exempt employees being eligible for overtime. And while many people think the rule is that salaried employees are "exempt" and hourly employees are "non-exempt," it's not always as simple as that.

Some basics about the FLSA and overtime pay

First, it's important to know a little more about the FLSA and what it does. Specifically, this federal act sets the standards for many labor-related legal issues, including minimum wages and overtime pay. And even though some states have also created their own stricter laws that regulate these same areas, the FLSA still applies nationwide.

The current federal minimum wage under the FLSA for hourly employees is $7.25 an hour, although some states and local governments have chosen to have higher minimum wages.

Importantly, the FLSA states that non-exempt employees must receive overtime pay for any hours worked more than 40 hours in a workweek of at least one and one-half times their regular pay rates. Also, every employer covered by the FLSA must maintain accurate records of their employees, their hours worked, and wages earned.

FLSA overtime: Exempt vs. non-exempt

As mentioned above, only non-exempt employees are eligible for FLSA overtime pay, but in order to understand which employees are non-exempt, you must first understand who is exempt.

What makes someone exempt? Job titles alone do not make someone exempt — what makes someone exempt is generally two things in conjunction: salary and job duties. For example, exempt workers must typically be salaried employees who earn a minimum amount per week of $684.00.

In addition, the job duties of exempt employees must fall under very specific categories. Some of these FLSA overtime exemption categories include:

  • Administrative employees
  • Computer professionals
  • Executives
  • Outside sales personnel
  • Professional employees (that is, employees with specialized knowledge and education like doctors, lawyers, and dentists)

If you would like to learn more about these specific exemptions, you can find additional information in 5 types of jobs that are overtime exempt under the FLSA.

Now that you know who is exempt under the FLSA — meaning employers don't need to pay these employees overtime pay — who exactly is non-exempt? While the list of jobs that qualify as hourly, non-exempt employees is virtually endless, here are just a few:

  • Tradesmen such as plumbers, carpenters, and electricians
  • General construction workers and laborers
  • Maintenance workers
  • Retail workers
  • Food service workers

Employees in these professions are entitled to receive the minimum hourly wage — although special rules often apply to food service workers and other tipped employees — plus one-and-a-half overtime pay for every hour over 40 hours in a given workweek.

And even if non-exempt employees make more than $684 a week, or even more than their exempt co-workers, they are still non-exempt under the FLSA because they do not fall under one of the exemption categories mentioned earlier — executive, professional, administrative, etc.

State overtime law vs. FLSA overtime law

As mentioned earlier, while the FLSA does apply nationwide, overtime pay rules may still vary from state to state because individual states can choose to create their own, stricter labor laws. For example, though the federal minimum wage is currently $7.25 an hour, some states have a higher minimum wage and employers must pay the employees the higher amount.

Regarding overtime pay, states also may have their own additional rules and regulations governing how overtime pay works. For example, non-exempt employees who live and work in California may be eligible for overtime pay under state law if they work more than 8 hours in a day, as opposed to 40 hours a week. And if they work over 12 hours in a day, the time-and-a-half overtime rate most often increases to double pay.

Learn more about FLSA overtime

Employers who misclassify non-exempt employees as exempt can be making a costly error, especially since misclassified workers may sue later for unpaid overtime pay.

If you would like help keeping up with the ever-changing FLSA and overtime labor laws, you should try Practical Law. Get your free 7-day trial of Practical Law today.

The content appearing on this website is not intended as, and shall not be relied upon as, legal advice. It is general in nature and may not reflect all recent legal developments. Thomson Reuters is not a law firm and an attorney-client relationship is not formed through your use of this website. You should consult with qualified legal counsel before acting on any content found on this website.

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