A Lawyer Gives Answers to Commonly Asked Questions about Overtime

While the FLSA does not require an employee to be paid more if he or she is forced to do the same work as a higher-paid supervisor, it does require employees to be paid overtime for extra work hours, even if the work is not part of the employee's normal job. The questioner states that he or she spends about 37 hours doing basic office tasks (typing, filing, faxing, etc.) and a few hours a week doing monthly, quarterly and annual reports which require analytical and mathematical skills. It is possible that, under the new regulations, the questioner would lose overtime protection, but without more detail it is difficult to say. In any case, if the questioner is covered by the FLSA, he or she cannot be legally refused cash overtime compensation. In the private sector, comp time cannot be paid instead of cash overtime.

Since the questioner is paid by the hour in a non-professional (i.e., doctor, nurse, teacher, or lawyer) occupation, it is probable that the questioner is covered by the FLSA. In the public sector, employers can pay their workers for overtime hours using comp time rather than cash compensation. However, this method is subject to federal regulations, and the number of hours that can be paid by comp time and not overtime is capped at 240 a year (480 for emergency services employees). In addition, the choice of comp time rather than cash overtime is generally to be made pursuant to an agreement between the employer and employee, and must not be coerced. The subject of comp time agreements is not covered by the new regulations issued by the Department of Labor; they are also very complicated. If you think your employer is coercing you into taking comp time rather than cash overtime, you should probably consult an attorney.

The questioner doesn't provide enough detail to be able to answer the question specifically as to whether he is exempt from overtime protection. (Remember to explain in detail the tasks and responsibilities in your job!) However, typically the new regulations will impact employees who have even minor "supervisory" responsibilities -- even if the employee is a "blue collar" employee. It is not true, however, that an employer can simply raise a worker's salary and expect that this will allow them to exempt the worker from overtime protection, unless by raising the worker's salary he or she is lucky enough to make more than $100,000 a year.

Under the old rules and the new rules, someone with a title of automation engineer is going to be exempt from overtime protection. Without a union contact or other state protections, engineers are exempt under the "professional" exemption from overtime laws. This is the same exemption that is usually applied to doctors and lawyers. In this case, the questioner performs complex tasks requiring scientific knowledge that is typically only acquired through a specialized degree in engineering. The tasks are not rote, menial jobs but rely on the expertise of the employee to meet the specific needs of the customer. The questioner has an engineering degree. Yet, even in cases where all these criteria apply, engineers are not "exempt" under the old regulations if their ordinary pay comes by the hour. Engineers paid hourly are often entitled to overtime compensation (unless the computer programmer exemption applies). Under the new regulations, engineers who make more than $100,000 a year are also likely to lose overtime protection, but for that to happen the company must make a slight change in pay practices. See elsewhere on this page for a discussion of the "highly compensated" employees provision. The computer programmer exemption applies even if the programmer is paid by the hour, so long as it is at least $27.63 an hour, and so long as the programming required is done in consultation with customers or involves machine operating systems

Anytime an employee is required to work more than 40 hours a week, the employee is entitled to overtime, no matter what day it is—that is, if the employee is covered by an overtime statute. The question of "volunteering" to work is a tricky one, but in general an employee is entitled to overtime pay for all hours worked, even hours where the employee "volunteers" to do extra work. So long as the manager of the employee permits the extra work to be done, the employee is entitled to overtime. This is true even if the employer asks the worker to sign a form "waiving" his or her right to the extra pay.

No. It's true many "blue collar" employees will not be affected, but of course they already had overtime protection. Many, many employees with incomes less than $100,000 a year will lose overtime protection. This will happen in one of two ways. First, some people who had 40-hour workweeks will now be required by their employer to work longer hours but will not get overtime compensation for their extra work. Second, some people who already did work overtime hours will get less pay for their extra work, or no extra pay at all. The only people who will benefit are a small number of workers who currently make $455 a week or less AND who did not receive overtime before. Excluded from this group are some professions (like teachers).

Unfortunately, the Fair Labor Standards Act doesn't prohibit an employer from running its employees ragged—in fact, no statute puts a limit on the number of hours a worker can be required to work (except a few state laws pertaining to teenagers). The questioner is a claims manager for an insurance company; the new regulations have been worded in ways that appear to favor insurance companies especially, meaning that many employees of insurance companies will lose overtime protection. Without knowing more about the specific job duties of the questioner, I can't offer any more information. But see my discussion of the "primary duty" element of the regulations elsewhere on this page—that redefinition will result in many people losing overtime protection.

Telemarketers will probably not lose overtime pay unless they can also be categorized as "team leaders" or managers. See my discussion of team leaders elsewhere on this page.

Some employees engaged in the graphic arts for newspapers are protected by the FLSA, particularly where their work is not "original and creative in character in a recognized field of artistic endeavor." Where an employee regularly engages in artistic, creative work (for instance, freehand drawing) he or she may be exempt from overtime protection. However, where an employee's primary work entails layout of a newspaper, or cutting-and-pasting simple graphics or logos for advertisements, it is more likely that that the employee is entitled to overtime protection. In the private sector, employees cannot be compensated for overtime hours with "comp" time; that is only permitted in the private sector for hours worked less than 40 in a workweek, or in the public sector. Where a protected, nonexempt employee has been forced to accept comp time rather than overtime compensation, the employer violates the statute by refusing to compensate the employee for the overtime.

The Fair Labor Standards Act regulates whether or not employees are entitled to overtime compensation for any hours worked past 40 in a workweek. It does not limit or cap the number of hours that an employer can order its employees to work.

Under both the old regulations and new regulations, employees in management positions are typically exempt where they are the most senior person at the location and they supervise two or more employees. Under the old rules, managers who also perform check-in/check-out, maintenance, and other work usually still were exempt if the time spent on managerial tasks amounted to 50 percent or more of their workweek. This 50 percent rule sometimes meant that employees who were called "managers" by their employer still had overtime protection. Under the new rules, the 50 percent rule has been replaced with a vague test that will probably result in many of those employees losing their overtime protection.

Employees in many, perhaps most, occupations will be exempt from overtime protection if their income exceeds $100,000 in a year under these new regulations. This is because of the new "highly compensated employees" provision, which will almost certainly be challenged in court. The provision establishes much lower hurdles to exempting employees if they make $100,000 or more in "total annual compensation." The only substantial requirement is that the employee receives a minimum of $455 a week ($23,660 a year) on a salary basis. Everything else can be in the form of hourly or other forms of

For the most part, people who work as restaurant cooks and are paid by the hour will keep their overtime protection under the new regulations.

It's important to note that merely going to college will not result in a worker losing overtime protection. However, it may be that a medical laboratory technician may be subject to overtime exemption under the new rules. The important inquiry is whether the work performed is in an occupation requiring advanced knowledge of a field of specialized training, and not in a field of mechanical arts or a skilled trade. Certified medical technologists, for example, are typically exempt (if they are paid on a salaried basis at more than $455 a week). As a very broad rule of thumb, where an employee learns most skills on the job rather than in an institution of learning, the employee is not going to be exempt from overtime protection as professional. (The employee might be exempt as an executive or administrative employee, but that's another story.)

Some employers are making changes to job titles, position descriptions, and work rules in an effort to reclassify employees as exempt from overtime protection. Here, the questioner is paid by hour and does maintenance work, including the ordering of all parts and equipment need to make repairs and even some small construction and remodeling. Under the regulations, the questioner could be subject to the "administrative" exemption if and when he or she is moved to a salary basis. Remember that employees who are paid strictly on an hourly basis usually are "non-exempt" and entitled to overtime. (Although elsewhere on this page I've pointed out a possible loophole in the new regulations on this subject; see my discussion of nurses below.) Under the old regulations, a job task like the ability to order new equipment and parts without seeking permission from supervisors was a sign of exempt status, but not the end of the story. Under the new regulations, the mere fact that an employee has that authority could result in his or her overtime being taken away.

The new rules will not impact any legal claims for overtime based on the old rules. However, some cases that have been filed may end up being the first opportunities for courts to interpret the new regulations. The new regulations went into effect August 23 of this year, so if you were "non-exempt" under the old regulations (that is, you were protected by the statute) you can still have your rights enforced for all workweeks before August 23, even if under the new regulations you have lost overtime protection.

Well, they can contact a lawyer, or they can contact the local wage and hour office. The Fair Labor Standards Act (FLSA) has an "anti-retaliation" provision: if an employee files an action in court or makes a complaint to a wage and hour office, the employer is prohibited from retaliating against the employee.

Many "blue collar" occupations have been singled out in the new regulations in ways that hopefully will be protected. This practice is carried over from the old regulations. However, we may see some employers finding creative new ways to try to establish some surprising categories of employees -- even plumbers -- as exempt from overtime protection. It is unlikely that we will see this immediately, however: even though there are many possible loopholes in the regulations, it would be necessary to assert too many loopholes together to ensure that plumbers would lose their overtime.

So long as they make more than $455 in a workweek, employees in places like Starbucks may lose overtime protections under certain circumstances. The employer will still have to pay assistant managers overtime if that worker is an hourly employee, but under the new regulations it only takes a small change in the compensation method for the employer to have a legal argument that the assistant manager is no longer protected by the statute. And even though she has few management responsibilities, an employer could theoretically tack on a few extra tasks (like authorizing bathroom breaks or filling out performance evaluation forms) which take a small amount of the employee's time. By calling those extra tasks her "primary duty," the employer could then argue that the worker is exempt from overtime regulations as an "executive."

The U.S. Supreme Court has asserted that an employee cannot waive his or her right to overtime compensation under the FLSA. To agree to accept less than the statute requires would undermine the statute, and that hurts all employees. Thus, even if there is an "understanding" that you would accept only straight time, you are still entitled to be paid time-and-a-half.

Sometimes employers try to get away with not paying overtime because they claim a worker who works overtime in one week "made up" the extra hours from an earlier week. For example, the worker works 35 hours one week, and 45 hours the next, for an average of 40 hours -- so no overtime. For most employees (assuming that the Fair Labor Standards Act applies) this is unlawful. Here, the questioner does not specify what the workweek is, how many hours she's working, or what the job is. But she should probably contact a lawyer or her local wage and hour office.

LW works as an office assistant, handling everything from medical coding in billing matters to secretarial work. She is paid hourly. It appears that many workers like LW are being told that she is losing overtime protection as a result of overtime protection, but at the same time the employer is changing personnel policies in order to comply with the rules. Since LW says she is paid by the hour and does not receive a regular salary, the new rules probably do not affect her. Anyway, the employer has changed her work schedule so that she works less than 40 hours a week, so she won't be working any overtime. Unless a secretary has some kind of managerial or administrative (i.e., senior policymaking) responsibilities, it is unlikely that the position is going to be exempt from overtime protection.

The regulations are confusing in this area, but merely in working the health care field does not result in losing overtime protection. Registered Nurses (RNs) who receive a salary typically have always been exempt from overtime protection. Certified medical technologists are also exempt when they are paid on a salary basis. However, licensed practical nurses, even those paid on a salary basis, are generally still protected even under the new regulations. Some states may require that people in certain medical occupations (like home health aides) obtain some kind of license or registration, but just because you have to register with the state doesn't mean you lose overtime protection. And remember, even RNs keep their overtime protection if they are not paid on a salary basis (although, as I've commented elsewhere on this page, that situation is threatened by the new rules).

Usually. The FLSA does not limit the number of working hours; it only requires an employer to pay overtime for working hours over 40. Sometimes, in rare instances, state or local laws limit the number of hours per week for teenage employees or employees in certain physically demanding occupations.

If an employee has some supervisory authority within a work group or team, it is possible that an employer could use the minimal extra duties assigned to the "group leader" or "team leader" as a basis for reclassifying the employee as "exempt" -- that is, not entitled to protection under the FLSA. This is because the new regulations no longer require that the employer show that the worker is spending 50% or more of his or her time on managerial or executive tasks. Now, even if the questioner's husband only spends (let's say) a half-hour on managerial tasks in a workweek, he could be reclassified as an exempt "executive." While this argument will almost certainly be subject to litigation, it will in the meantime put a lot of people's overtime at risk.

In the press it has been widely reported that insurance claims adjusters and other employees in the insurance industry will be harmed by the new regulations, and that appears to be true. So long as an employee's salary is above the $455 a week threshold (and is on a salary basis), the new test will negatively impact insurance claims adjusters whose job tasks involve independent discretion and judgment. In the past, the "independent discretion and judgment" requirement was tempered by the clear requirement that the time spent in such work had to amount to the majority of the employee's workweek. In other words, if you spent only a small amount of time on tasks that requirement "independent judgment and discretion," you still were covered by the FLSA and were entitled to overtime. Now, with the new regulations, an employer can point to even a few tasks or responsibilities as justification for exempting you from overtime protection.

Technically, no. The regulations for federal employees are set by the Office of Personnel Management, and OPM has not yet modified its own regulations to conform to the new ones that went into effect on Monday, August 23. That will take some time. However, by statute the overtime regulations issued by OPM must conform to the new regulations issued by the U.S. Department of Labor. When OPM acts, it must follow the U.S. Department of Labor's changes.

Many, if not most, teachers already were not covered by the FLSA under the old regulations. Now, the broad exemption of teachers appears to have been expanded by the new regulations. Under the new regulations, the salary basis and salary threshold tests do not apply. That means that even if a teacher is paid by the hour, and even if a teacher is not making at least $455 a week, there is generally a presumption that the FLSA does not apply. Not only does this mean that the teacher does not have overtime protection under federal law, but has no guarantee of a federal minimum wage. Collective bargaining may help protect public school teachers, but those working for private employers are often unorganized.

As with firefighters, police officers, and some other "first responder" occupations, it appears that these regulations may have a slightly positive effect on paramedics. That is, the overtime protections for paramedics appears to have been somewhat strengthened.

As has been discussed elsewhere on this page, employees in the service industry, particularly the fast food industry, may lose overtime protections, so long as they make more than $455 in a workweek. The employer will still have to pay assistant managers overtime if that worker is an hourly employee. But under the new regulations it only takes a small change in the compensation method for the employer to have a legal argument that the assistant manager is no longer protected by the statute.

As with firefighters, police, paramedics, and other first responders, some corrections officers may actually benefit from these new overtime regulations. So it's unlikely that corrections officers will lose overtime protection under them. In fact, some corrections officers who did not receive overtime beforehand may now be entitled to it. However, all of this will probably be litigated fairly heavily.

The statute is very clear that overtime must be calculated for a 40-hour week. (There are some very narrow exceptions, particularly for firefighters.) So even if an employee works 45 hours one week, and 35 the next, that employee has worked five overtime hours, even if it averages out to 40 hours per week.

No, under the federal law guaranteeing overtime (the Fair Labor Standards Act), the employer does not have to tell employees in advance if they will lose overtime pay. If a collective bargaining agreement is in place or an enforceable personnel policy exists, the employer cannot so easily make that kind of change.

JH says that he is paid on a combination of a salary and commission. As is common in these jobs, JH has a variety of tasks, including replacing and rotating products, setting up displays based on a pre-scheduled corporate calendar, and collecting some small payments from some customers. Mostly, however, JH drives a delivery truck and hauls the products to each customer's display floor. JH's interaction with purchasing agents or stock managers is limited to about one hour a week. The regulations in fact state that "route drivers" who do not do much in the way of actual salesmanship should usually be entitled to overtime. However, the Motor Carrier Act is another factor. Employees who operate motor vehicles owned by the employer to carry property across state lines are often exempt from overtime protection. Application of this exemption is extremely broad, but depends on the question of whether the job involves "interstate commerce." That's a loaded legal term which would take too long to discuss on this website. The short answer to JH's question is that the new regulations probably did not improve JH's chances of qualifying for overtime protection. Take a look at this link to learn more about exemption under the Motor Carrier Act: http://www.dol.gov/esa/regs/compliance/whd/whdfs19.htm

RK is paid hourly, supervises four other employees, does yearly evaluations, and "assists" in hiring and firing. Under either the new regulations or the old ones, RK will probably keep his overtime protection because he is an hourly employee.

See other questions regarding comp time on this page. If your employer is not a public agency and is using comp time instead of overtime, it may be violating federal law.

No! Even if your employer has to pay you overtime under the statute, you should not walk off the job. The FLSA does not set maximum hours on a workweek -- it only requires that when your employer makes you work more than 40 hours in a week, you must be paid overtime for those hours. If you think you should be receiving overtime pay for extra hours, by all means contact a local attorney!

You are right. Workers receive overtime pay if they work over 40 hours in a week.

LVNs are similar to Licensed Practicing Nurses (LPNs) and were typically "non-exempt" under the old regulations (meaning, they were protected by the Fair Labor Standards Act). Under the new regulations, LVNs will get to keep their overtime if their job duties are not extensively changed.

No, you will not loser your overtime pay as a direct result of the new regulations. The FLSA only requires that employers pay overtime to employees whenever they work more than 40 hours in a workweek. The regulations only serve the purpose of defining whether certain exemptions from that requirement apply.

No. The newspapers have widely reported that workers who make who make less than $23,660 will usually be eligible for overtime pay. To be accurate, the real issue is not annual compensation but weekly compensation. Employees who make $455 a week on a "salary or fee basis" are the employees who are subject to these new regulations. (As are doctors, lawyers, and teachers/instructors, no matter their income.)

Probably not. The skilled trades such as electrician, welder, etc., will usually retain overtime protection because they are usually paid hourly and because they rarely have supervisory skills. But the new regulations, as I've stated below, contain new provisions that create a gray area on who is considered an "hourly" employee, and some employees who can be described as "group leaders" may end up losing overtime protection.

Perhaps eventually, JM's income will be capped at $100,000. However, many GM employees have a union contract that protects their overtime pay, and of course if JM is in one of the 18 states that have some measure of state law protection it may not impact JM's overtime classification immediately. The new regulations have an entirely new provision for "highly compensated employees," in which employees who make $100,000 or more essentially are exempted from overtime protection if they customarily perform even one small duty that is related to management, administration, or a profession. The only requirement is that the employee be "guaranteed" a weekly "salary" of $455 a week -- not a likely roadblock for someone making $100,000 a year. Thus, if a worker gets paid a regular salary of $65,000 but works so many hours that the overtime amounts to an additional $40,000, the employer can simply stop paying the last $5,000 on the grounds that the worker is "exempt." This peculiar new provision will probably the subject of extensive litigation.

RO has a job as an assistant manager who takes applications for loans, inputs them into a system, and makes loan decisions based on credit reports, etc. RO has not received overtime in the past. Under the new regulations, RO should probably be receiving overtime. It's not clear, though, that RO was legally not being paid overtime before. RO did not mention any supervisory tasks or responsibilities in the message, so it's possible that RO should have been receiving overtime all along. RO, check with an attorney!

NC is a construction worker and is paid hourly. He or she makes more than $455 a week and has a union contract. Although there is no information about his or her job duties, it is highly unlikely that NC will lose overtime protection. First, there's the union contract, which will protect NC's overtime for the time being. Second, NC is paid by the hour. Although the new regulations have blurred the line between the definitions of "hourly" and "salaried",the changes probably will not impact the construction industry.

Yes. The new regulations only define who is protected by an overtime law. Some state laws may provide additional protection. But employers can still choose to pay their employees overtime, just as they can choose to pay them more than the minimum wage.

Yes and no. Specifically, the new regulations only serve to define who is "exempt" from federal overtime protection. If, under the new regulations, a worker is still protected, then the company cannot use comp time instead of overtime pay (unless it's a public employer, like a city government). But because many people will lose their overtime protection under these new regulations, that will mean an employer will be able to change pay practices pretty dramatically. When a worker is made "exempt" from overtime protection, the employer does not have to pay overtime to the worker at all. In some circumstances the company may choose to soften the blow by giving the worker comp time in a way, that's better than nothing. That's how these new regulations can allow employers to use comp time instead of the overtime they had to pay before.

LB has a degree in the field and the requisite training, and is paid by the hour. Right now, LB's union contract guarantees her overtime. Under both the old and new regulations, most registered or certified medical technologists were already exempt from federal overtime protection if they were paid on a salary basis. However, because LB is paid hourly under the old regulations, she was protected. Under the new regulations, the employer might choose to change its pay practices so that LB would qualify as being paid on a "salary basis" and would then not be protected by federal law. Another important question is whether the possibility of being legally reclassified as "exempt" would result in her being removed from the bargaining unit. Since the issue of bargaining unit status is covered by a completely different statute, it is not likely at this point that LB could be lawfully removed from the bargaining unit; but lawful changes in pay practices can have long-term consequences, including a finding that workers like LB no longer share a "community of interest" with other workers in the unit. In any case, if the company tries to do it, LB and the union would have a right to appeal the action.

This questioner is paid by the hour and works at a truck stop, so he or she will probably not lose overtime protection. The salary threshold of $455 a workweek (which amounts to $23,660 a year) is for all compensation received from that employer. Other income from other sources is not counted toward the salary threshold. Note that under these regulations some employees who make different amounts on different weeks may have overtime protection only in those weeks in which the weekly income falls below $455. This would happen to employees who are paid on a per-call, per-shift, or fee basis.

Having a union IS the best way to fight back, but there are other ways. If you think you have been reclassified improperly, you should contact an attorney or the local wage and hour office. To find an attorney, try your local bar association's referral service.

There is an interesting and somewhat confusing provision in the new regulations pertaining to fire fighters, police, and similar first responder occupations. At first blush, it would seem that ALL first responders are newly entitled to overtime protection. But the provision is worded poorly. Personally, I believe that the language of this provision should actually help a few firefighters gain overtime protection that they didn't have before. However, Battalion Chiefs are probably not going to have their status changed.

Yes, usually, and yes. The fluctuating workweek method is found in another part of the US Department of Labor's regulations, a part which wasn't changed. In this kind of situation, the employee has been hired with the alleged understanding that he or she would be working differing hours every week, and with the alleged understanding that he or she would regularly be working more than 40 hours a week. Because of this understanding, the employee is considered to already receive straight time pay for all hours worked because he or she receives a regular salary. For overtime hours, therefore, and employer need only pay the employee an additional half-time for the overtime hours to comply with the law. Note, however, that the half-time rate must be calculated off the total income for the week, including bonus pay and other extra compensation. Many times employers erroneously calculate the pay rate, and employees don't realize that they're not getting the overtime pay they're entitled to.

Because the questioner is under the new weekly threshold, she retains her overtime protection. Many supporters of the overtime regulations have insisted that the regulations will increase the number of low-income people who get overtime. But the fact is, so far it seems that those who regularly make less than $455 a week already had overtime protection under the old regulations. The new regulations do not appear (so far anyway) to have had any substantial, positive impact on low-income employees.

Unfortunately, there is a general exemption for truck drivers based on the Motor Carrier Act, and so it is true that the new regulations do not impact truckers.

Because MF's job duties are probably largely supervisory, MF would be exempt from overtime protection if he was a truly salaried employee - that is, under the old regulations. Under the current employment arrangement MF will not lose federal overtime protection with these new regulations. However, the new regulations loosened the salary basis requirement so that MF could receive a base level salary, then some hourly compensation above that. The effect would be that the employer could treat MF like an hourly employee but still refuse to pay MF overtime.

Probably. Most temp employees are paid and employed strictly by the hour, and under these new regulations will continue to be paid strictly by the hour. Because of this, the new regulations won't impact whether or not their overtime will still be protected.

Generally, the answer to this question relies on state wage payment laws, which are harder to enforce and serve as a minor deterrent to employers compared to the federal overtime statute. And some states don't have a wage payment law! In some situations, an employee who is regularly scheduled to work (say) 40 hours a week should get at least straight time for unscheduled hours that he or she is required to work. If the employee is protected by federal overtime laws, of course, that overtime should be paid at "time and a half." But many employees may find themselves required to work more hours but will not receive any compensation for these extra hours. This is especially true where it could be shown in a court that no set schedule was negotiated between employer and a newly hired employee, or where it could be shown that the employer never promised a regular work schedule. Under these circumstances, without the federal overtime statute the employee is usually deemed to have agreed to the fluctuating workweek just by agreeing to take the job.

The new regulations can be found on the Department of Labor's website at: http://www.dol.gov/esa/regs/compliance/whd/fairpay/regulations.htm.

Commissioned sales jobs are actually exempt from overtime under a completely different part of the federal overtime statute, so these new regulations do not affect commissioned sales employees. You can track down the statute yourself if you like (it's 29 U.S.C. Sec. 207(i)). Basically, it states that commissioned sales employees who work for a "retail or service establishment" are exempt from overtime protection if they earn the equivalent of at least 1.5 times the minimum wage, and if one-half of their income comes from commissions. It is sometimes complicated to analyze this provision, so I recommend you confer with an attorney if you think you might be entitled to federal overtime protection.

WG says he is a case worker who manages voluntary or court-ordered services. WG doesn't say whether he is paid by the hour or not, but probably he is a salaried employee. He also currently receives overtime. He says that the position requires some independent decision making but under a supervisor who may change a decision or course of action.

The definition of an "administrative" employee has been eroded by the new regulations based on the new definition of a "primary duty." If an employer can argue that the employee's "primary duty" consists of administrative tasks, then it is more likely that WG will end up losing his overtime protections. Under the previous regulations, it was more a matter of how much time out of WG's workweek was spent on administrative or management-related tasks: if less than 50 percent of his time was spent on tasks that were not managerial, then he was likely to have overtime protections. The new regulations have done away with the time-keeping method; now, whatever the employer can prove is the "most important" duty- even if it only takes up a tiny fraction of WG's workweek- will meet that "primary duty" test. As a result, WG may end up losing his overtime protection.

BC is a certified surgical technologist who makes $32,000 a year and gets paid on some sort of per-call basis. The job requires assisting surgeons during operations. I assume that means BC is the person who says "scalpel" right after the doctor says it. But without a little more information it is hard to know exactly how BC will be affected by the regulations. My guess is that BC is at risk to lose overtime protection because of either the professional or administrative exemption, but without more information I can't say for sure. If BC is paid truly on a per-call basis, an employer might decide that BC is not entitled to overtime because the job's "primary duty" is directly related to "business operations" of the employer. Business operations is a fairly broad term, and could include the job of assisting surgeries performed by her employer. The question remains, however, whether BC conducts this primary duty with "independent judgment and discretion." Without more information, we can't be sure.

If you earn less than $455 in a workweek and if you're not a teacher, lawyer or doctor you are generally entitled to overtime protection. However, employees are entitled to overtime protection only for hours actually worked over 40. If an employee is not working during a one-hour lunch break, then that hour cannot be counted as time actually worked. Thus, in a workweek that is 42 hours, with five one-hour lunch breaks, under the statute the "actual" workweek is only 37 hours. This is below the 40-hour threshold.

Employees who are paid on a salaried basis are usually paid overtime in two different ways depending on their schedules. For example, let's say you have a regular weekly schedule of four 12-hour shifts, totaling 48 hours. If you are covered by the FLSA, you are entitled to eight hours of overtime. However, because your regular salary already pays you "straight time" for those eight hours, the FLSA requires that the employer only additionally pay you a "half-time" rate for those eight hours.

Let's say that, in addition to your regular 48-hour weekly schedule, you occasionally get called in on special assignments. Because those calls are not regularly scheduled, the FLSA requires that you be paid time-and-a-half for those extra hours.

Alaska, Arkansas, California, Colorado, Connecticut, Hawaii, Illinois, Kentucky, Maryland, Minnesota, Montana, New Jersey, North Dakota, Oregon, Pennsylvania, Washington, West Virginia, and Wisconsin each have state laws governing overtime of one kind or another. In general, some state laws provide more protection from these new regulations than others; usually, it's better for employees to have protection under federal law than under state laws because a wronged employee can file his or her case in federal court, and because the federal statute has a more thorough body of case law that can be used to protect employees' rights.

The questioner has a college degree, although it's not clear what field the degree is in. But many technicians may be negatively impacted by these new regulations because of the change to the "administrative" exemption. Under the new regulations, the definition of "primary duty" is loosened, so it is easier for an employer to claim that a technician's "primary duty" is directly related to the management or business operations of the employer. If an employee like the questioner is paid on a salaried basis he/she is at risk of losing his overtime protections. And as stated elsewhere, the changes to the definition of salaried basis may make it easier for the employer to treat him/her like an hourly employee but still technically characterize him as a "salaried" employee, thus passing a crucial test in the regulations.

A handful of states have state laws that afford employees a little more protection than the federal law on overtime rights. Illinois is one of them. It's not a perfect protection; most of these state statutes are not as strong as the federal law. For example, the federal law deters employers from violating overtime rights of their employees better than most state laws because it provides for more damages than those state laws. In addition, some state legislatures or state labor departments may choose to modify their own wage and hour statutes or regulations to resemble the new overtime regulations. That is only a matter of time. In general, though, the impact of these regulations in states like Illinois will be smaller than in other states where no state wage and hour laws are on the books.

The Fair Labor Standards Act requires that employees of a private company or a non-profit must be paid overtime compensation for all hours they work over 40 in a work week. Only public employers (like city governments, for example) can pay employees with comp time instead of overtime, and then usually under certain conditions. If a private company is trying to compensate employees with comp time instead of overtime, it may be violating the law. If the employee is exempt as an executive, administrative, or professional employee (or exempt for other reasons, like agricultural workers), then the statute doesn't apply. Here, the questioner only states he or she conducts some counseling and other assistance; the questioner should contact an attorney to discuss whether or not he or she is entitled to overtime compensation.