For most employees, the answer is yes—generally under federal law you should be paid time and a half if you work more than 40 hours in a week.
The federally required labor standards and overtime provisions are contained in the Fair Labor Standards Act (FLSA). Unless exempted, FLSA requires that employees are required to receive at least time and one-half the regular rate of pay for all hours over 40 hours worked in a workweek. A workweek is defined as a fixed and regularly recurring period of 168 hours — seven consecutive 24-hour periods. Pursuant to federal law, a workweek does not need to coincide with the calendar week, but rather can begin on any day and at any hour of the day. Overtime accrued for a particular workweek must be paid on the regular pay day for that workweek.
There are several exemptions available to the overtime requirements under FLSA With the exception of the sales exemption, all of the following employees must be paid on a salary or fee basis at a rate not less than $455 per week. The following exemptions do not require the employee’s to be paid overtime under law:
- Executive Exemption—Employee must manage a business or department of the business and must direct the work of at least two other full-time employees.
- Administrative Exemption—The primary duty must be the performance of office or non-manual work, and the employee’s primary duty must include the exercise of discretion and independent judgment.
- Professional Exemption—The learned professional employee exemption applies to employee’s whose primary duty is the performance of work requiring advanced knowledge (work which is predominantly intellectual in character) in a field of science or learning. The creative professional employee exemption applies to an employee whose primary duty requires invention, imagination, originality or talent in field that requires artistic or creative endeavor.
- Computer employee exemption—The employee must receive a salary of $455 per week or make at least $27.63 an hour and be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worked in the computer field.
- Outside Sales Exemption—Applies for employees who make sales and regularly are engaged away from the place of business
- Highly compensated employee exemption—Allows an overtime exemption under the law employees making over $100,000.
Employees that these exemptions never apply to— blue collar workers, manual laborers, police, firefighters, paramedics & other First Responders.
Next month, the Supreme Court will hear a case on the FSLA, Christopher v. SmithKline Beecham Corp. Specifically, the Supreme Court will be deciding whether pharmaceutical sales representative are exempted under the FLSA under the outside sales exemption. The plaintiffs argue that the exemption does not apply because they pharmaceutical sales reps do not actually sell the drugs to doctors, but rather only promote. The 9th Circuit disagreed with the plaintiffs, holding that pharmaceutical reps do qualify under the outside sale exemption and therefore are not entitled to overtime. Interestingly, the 2nd circuit arrived at a different conclusion in In Re Novartis Wage and Hour Litigation. The Supreme Court oral arguments for Christopher v. SmithKline Beecham Corp are scheduled for April 16, 2012.
Importantly, in some instances, states have stricter labor standards and overtime requirements than the FLSA. In the situation, where a state has higher overtime requirements, then the state labor law will apply.