Overtime FAQ’s

1.  What is the FLSA?

2. What is overtime pay?

3. When should I be paid overtime?

4. Should I be paid overtime is I work more than 8 hours per day?

5. How is over time calculated?

6. Are other monies I receive taken into consideration when calculating overtime?

7. Who is entitled to overtime?

8. Can my employer pay me comp time instead of overtime?

9. Can I be paid overtime if I am a salaried employee?

10. I didn’t keep track of my overtime hours.  How can I prove how much overtime I have worked?

11. If my employer refuses to pay overtime, what can I do?

12. How much time do I have to file a complaint or lawsuit for overtime pay?

13. If my lawsuit for overtime pay is successful, what will I be awarded?

14. How long does an FLSA case before a decision is made on whether I am entitled to overtime pay?

15. How do the lawyers get paid?

16. What if my employer retaliates against me for filing a claim for overtime pay?

17. What effect do the provisions of a collective bargaining agreement have on FLSA overtime rights?

18. What is “Chinese Overtime”?

19. If I work on weekends or on holidays am I entitled to overtime pay?

20. What if my employer asks me to work overtime and I agree to straight time pay?


1. What is the FLSA?

The FLSA is a federal labor law that provides within its provisions for employers to pay the legal minimum wage, establishes record keeping and child labor standards, and requires that most employees be paid time and one-half for all overtime “hours worked.”

2. What is overtime pay? 

Overtime is defined as any work performed in excess of 40 hours per work week.

3. When should I be paid overtime? 

Overtime should be paid for any hours worked over 40 hours in a workweek if you are a qualifying employee.  A workweek means a period of 168 hours during 7 consecutive 24 hour periods.   Overtime must be calculated weekly.   This means that even though an employee may be paid bi-weekly  (receiving a paycheck for two workweeks), overtime should be calculated based on 40 hours of consecutive work in a week.

4. Should I be paid overtime is I work more than 8 hours per day?

No, overtime is owed only after 40 hours worked in a workweek.

5. How is over time calculated?

Overtime pay is defined as one and one-half times your regular rate of hourly pay.   For example if your normal rate or hourly pay  is $10 per hour, your overtime rate of pay would be $15.

6.  Are other monies I receive taken into consideration when calculating overtime?

Bonuses should be included in calculating overtime pay when they are tied to performance, quotas or other requirements and are not discretionary.  If your boss gives you a Christmas bonus, this would be considered a discretionary bonus  and would not be required to be included in calculating your overtime rate.

8. Can my employer pay me comp time instead of overtime?

The only time an employer can pay comp time instead of overtime is when the employee is a government worker.

10. I didn’t keep track of my overtime hours.  How can I prove how much overtime I have worked?

Your employer has the responsibility of maintaining accurate and complete records of the time worked by their employees.  If for any reason your employer cannot product records to substantiate overtime pay, the employee is entitled to recover based on “good faith, reasonable and realistic estimates.”

11. If my employer refuses to pay overtime, what can I do?

The best and most successful way to recover overtime pay is retain an attorney experienced in handling overtime wage claims.    Contact our office for a free, no obligation consultation.

12. How much time do I have to file a complaint or lawsuit for overtime pay?

Under the FLSA you can recover overtime pay up to the two years prior to the filing of a  lawsuit.  If your employer is found to “knowingly, willfully or recklessly” violate FLSA laws, you may be able to recover overtime wages from as far back as three years prior to the filing of a lawsuit.

13. If my lawsuit for overtime pay is successful, what will I be awarded?

You can be awarded all unpaid overtime for two and in some cases, three years.  A judge may also award “liquidated damages” that can equal the amount of unpaid overtime you are owed.  A judge may also award any attorney’s fees and expenses you have paid your attorney to handle your lawsuit.

14. How long does an FLSA case before a decision is made on whether I am entitled to overtime pay?

There are many factors that affect how long the process takes.   In most cases an experienced attorney can settle your case before a trial begins.  However, if the case is not settled before trial  the process can take several months to several years.

15. How do the lawyers get paid?

Donald W. Fohrman & Associates,  Ltd., handles  overtime cases on a contingent fee basis.  This means that you pay no upfront fees or retainers.  Our fees are deducted from any settlement or judgment you may receive.

16. What if my employer retaliates against me for filing a claim for overtime pay?

The FLSA provides that you employer cannot retaliate against any employee who exercises their rights under the FLSA.  If your employer knowingly and willfully harasses, demotes or terminates you in retaliation for exercising your rights under the FLSA, he can be subject to large fines.   The FLSA also provides that if the retaliation is extreme enough, your employer can also be subject to jail time.

17. What effect do the provisions of a collective bargaining agreement have on FLSA overtime rights?

Collective bargaining agreements have no affect on your rights to overtime pay under the FLSA.

Your rights under the FLSA cannot be waived or diminished under a collective bargaining agreement. In fact, if your collective bargaining agreement is more favorable than the provisions of  the FLSA, you would be entitled to whatever rights and benefits you are entitled to under your agreement.

18. What is “Chinese Overtime”?

If an employee is paid a a flat or fixed salary each workweek for hours that change  from week to week,  the employer may use an overtime calculation method called “fixed salary for fluctuating workweeks”.   This is is also know as “Chinese overtime”.

While computing overtime using this method is to the benefit of the employer, certain requirements have to be met.  In order for the employer to apply the “Chinese overtime” method to calculate overtime, the employee must have a work schedule with fluctuating hours. The employee must also be a paid a fixed salary for straight time for all hours worked in a work week.  An employer cannot make any deductions from the fixed salary if the employee works less than 40 hours per work week.

Additionally,  the employee must be paid at a rate high enough that the regular rate will never be below the federal minimum wage.

In calculating overtime,  the regular rate is determined by dividing the fixed salary by the number of hours worked that week. Since the employee is already being compensated at straight time for all the hours worked, overtime would then be paid at half-time instead of time and one-half.

The result is that straight time is only paid once, so the overtime hours will be paid at half the regular rate.  In a workweek when the employee’s number of overtime hours worked is high, the regular rate will be lower.  The overall hourly cost per hour for the employer will be lower. However, if an employee works less than 40 hours a week, the employer must pay the full fixed salary.

19. If I work on weekends or on holidays am I entitled to overtime pay?

Hours worked on weekends and holidays are treated like hours worked on any other day of the week and are not subject to automatic overtime pay.

20. What if my employer asks me to work overtime and I agree to straight time pay?

Neither you or your employer can waive your right to overtime pay.   If you work overtime and you are a  non-exempt employee, your employer must pay overtime pay for any overtime hours worked.  You are also entitled to overtime pay even if your employer states they have a “no overtime” policy but allows you to work overtime anyway.