If you are a non-exempt employee, federal law entitles you to overtime pay at one and a half times your regular rate for every hour over 40 in a workweek. That rule comes from the Fair Labor Standards Act (FLSA), enforced by the Department of Labor's Wage and Hour Division, and it covers the large majority of American workers. The disputes almost never involve the math. They involve whether you are exempt at all, whether your employer counted all your hours, and whether your regular rate was calculated correctly.
This post explains who is covered, how the exemptions actually work, the tricks that produce unpaid overtime, and how to recover what you are owed.
The default rule: overtime after 40 hours
The FLSA sets a workweek standard. A workweek is a fixed, recurring period of 168 hours, seven consecutive 24 hour days, and it does not have to match the calendar week. Overtime is owed on hours worked over 40 in that workweek. Federal law does not require overtime for weekends, nights, or holidays as such; a Saturday shift earns overtime only if it pushes the week past 40 hours.
Averaging across weeks is not allowed. An employer who works you 50 hours one week and 30 the next owes 10 hours of overtime for the first week, even though the two week average is 40. Comp time in place of overtime pay is generally not permitted for private sector employees.
Some states layer on more protective rules. California, for example, requires daily overtime after 8 hours in a day and double time in some situations, and several states have their own salary thresholds for exemptions that exceed the federal number. When state and federal law differ, the employee gets the more protective standard.
Who is exempt from overtime pay?
The best known exemptions are the so called white collar exemptions for executive, administrative, and professional employees, plus outside sales and certain computer employees. Each has three parts, and all three must be satisfied.
First, the salary basis test. The employee must be paid a predetermined salary that does not go up or down with the quality or quantity of work.
Second, the salary level test. The federal minimum salary for most white collar exemptions is 684 dollars per week, which is 35,568 dollars per year. A 2024 Department of Labor rule that would have raised the threshold substantially was struck down in federal court, which returned the federal number to 684 dollars per week. Several states set higher thresholds of their own, so check your state's figure.
Third, and most litigated, the duties test. The employee's actual, primary duties must fit the exemption. An executive employee must manage the enterprise or a department, regularly direct at least two full time employees, and have real authority over hiring and firing. An administrative employee must perform office work directly related to management or general business operations and exercise discretion and independent judgment on significant matters. A professional employee must perform work requiring advanced knowledge in a field of science or learning, typically acquired through prolonged specialized instruction.
Two things follow from the duties test that surprise people. A job title means nothing; calling someone an assistant manager does not make them exempt if they spend their shift running a register. And a salary alone means nothing; a salaried employee whose duties fail the test is non-exempt and owed overtime no matter what the offer letter said. Misclassification of salaried workers as exempt is among the most common wage violations in the country.
Independent contractor misclassification is the other big lever. Contractors are outside the FLSA entirely, so labeling workers as contractors makes overtime disappear. The label does not control. The question is economic reality: who controls the work, whose equipment is used, how central the work is to the business, and whether the worker is genuinely in business for themselves.
How is the regular rate calculated?
Overtime is one and a half times the regular rate, and the regular rate is not always the base hourly wage. It includes most payments for work: nondiscretionary bonuses, shift differentials, and commissions all get folded in. An employer who pays a production bonus but computes overtime only on the base wage is underpaying every overtime hour in the bonus period.
Unpaid working time is the companion problem. Time spent working off the clock counts: answering email after hours when the employer knows or should know about it, mandatory pre shift meetings, donning required gear, working through an automatically deducted lunch break. If the employer suffers or permits the work, it is compensable, and shaving those hours out of the timekeeping system is a violation.
How do I recover unpaid overtime?
Start by reconstructing your hours. Your own records are enough to start a claim; courts allow employees to estimate hours by reasonable inference when the employer's records are missing or wrong. Save schedules, punch records, texts about shifts, and pay stubs.
Then choose a path. You can file a complaint with the Wage and Hour Division of the Department of Labor, which investigates and can supervise payment of back wages. You can file with your state labor agency, which in many states is faster and handles state law claims the federal agency will not. Or you can sue, individually or as a collective action with similarly situated coworkers, which is common when a single pay practice affects a whole workforce.
The statute of limitations under the FLSA is two years, extended to three years for willful violations. The clock runs continuously, so every week of delay lets the oldest week of unpaid overtime fall off the back of the claim.
Remedies are meaningful. Back pay for the unpaid overtime is the floor. Liquidated damages in an equal amount, effectively doubling the recovery, are awarded unless the employer proves it acted in good faith with reasonable grounds. Prevailing employees also recover attorney's fees and costs, which is why wage attorneys routinely take these cases on contingency.
Retaliation for asserting FLSA rights, including firing, demotion, or cutting hours, is separately illegal and supports its own claim with its own damages. That protection covers internal complaints to the employer as well as agency filings in most circuits.
What to do this week
If you suspect you are owed overtime, do three things. Write down your actual weekly hours for as far back as you can reconstruct, because the record you build now is the backbone of any claim. Pull your pay stubs and note your classification, your salary or rate, and any bonuses. Then compare your real duties, not your title, against the exemption tests above. If your duties do not fit, or your pay falls below the threshold, or your hours were never counted, the law is on your side and the limitations clock is the only thing working against you.