How much must an employer pay an employee for working overtime? The primary law addressing this issue is the Fair Labor Standards Act (FLSA), which was first enacted in 1938 but has been amended many times since. Where it applies, FLSA dictates that an employer must compensate employees not less than one and one-half times their regular rate for hours worked in excess of 40 hours per week. FLSA requires extra compensation for a long week — in excess of 40 hours — but not for any particularly long day. (There is, however, a separate Colorado law on this subject discussed below.) FLSA does not limit the number of hours an employer can ask an employee to work so long as the employer pays the mandatory extra compensation. Of course, if the employee does not like the hours, the employee can quit.
FLSA only applies when the employee at issue is involved in some kind of interstate commerce or the business at issue has employees engaged in interstate commerce and more than $500,000 in annual sales. “Interstate commerce” can be something as simple as using the post office.
Many types of employees are exempt from overtime requirements under FLSA. In general terms, this includes:
• White-collar employees (executives)
• Commissioned salespeople
• Amusement park employees
• Radio, television and newspaper employees
• Agricultural employees and fishermen
• Transportation workers (taxi drivers, truckers, railroad employees, pilots)
• Domestic employees
• Fire protection and law enforcement employees
FLSA applies equally to salaried employees and hourly employees; however, in practice, most salaried employees fall under one of the exemptions.
FLSA dictates that “bona fide” meal periods are not work time and so are not included when calculating overtime and may be uncompensated. Thirty minutes or more is ordinarily a long enough time for a bona fide meal period. To qualify as a bona fide meal period, the employee must be completely relieved from duty for the purpose of eating a regular meal. The employee is not relieved if she or he is required to perform any duties, whether active or inactive, while eating such as answering the phone. Employers may require employees to eat within the workplace and do not have to permit employees to leave the premises, so long as employees are otherwise completely freed from duties during a meal period.
FLSA does not require rest breaks. FLSA simply recognizes that breaks are common in industry and specifies that employers must count break time as hours worked and compensate employees while they are on rest periods of short duration, running from five minutes to about 20 minutes. There is no separate requirement under FLSA for employers to provide employees with separate smoking breaks; smokers may be required to limit their smoking to scheduled rest periods and meal breaks.
Individual states may pass laws more restrictive than FLSA or that cover areas not covered by FLSA. For instance, certain Colorado laws:
• Require a meal break of at least 30 minutes’ duration when a work shift exceeds five consecutive hours of work;
• Require a compensated 10 minute rest break for each four hour shift, which, to the extent practicable, is in the middle of the shift;
• Require overtime pay for any work time over 12 hours per day (the long day statute referenced earlier);
• Allow employers to exclude from overtime compensation certain “sleeping time” when shifts are 24 hours or longer.
Determining what state and federal laws and exemptions specifically govern a given employment situation can be complicated. Contact the local employment office or an attorney for guidance.
The Mountain Law column is written by Noah Klug, a local attorney whose practice emphasizes real estate, business, and litigation. Noah may be reached at 970-468-4953 or Noah@TheKlugLawFirm.com.