Legal Insider: Overtime Pay Requirements

This is a sponsored column by attorneys John V. Berry and Kimberly H. Berry of Berry & Berry, PLLC, an employment and labor law firm located in Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters. They write biweekly on RestonNow.

Federal and state laws generally require most employers to pay overtime. Although Virginia does not have its own overtime requirement, it follows federal requirements for determining overtime pay and eligibility.

Federal laws regarding overtime eligibility and pay are covered under the Fair Labor Standards Act (FLSA) and are administered by the U.S. Department of Labor, Wage and Hour Division. As such, overtime pay-related questions in Virginia are typically referred to the U.S. Department of Labor.

Larger employers, usually defined as having more than $500,000 in annual sales, are typically bound by FLSA requirements. However, smaller employers generally must pay overtime if their employees work in interstate commerce or conduct business between states, including making phones calls to or from another state, sending mail out of state, or handling goods coming from or going to other states.

Unless specifically exempted, employees who are required or permitted to work more than 40 hours during a workweek generally must receive premium pay for such overtime work at a rate of at least one and one-half times the employee’s regular rate of pay.

Employees who are exempted from or are not entitled to overtime pay typically include executive, administrative, professional, computer or outside sales employees. Highly compensated employees or employees that meet an “administrative duties test” outlined by the U.S. Department of Labor are usually exempt and not eligible for overtime pay.

The FLSA does not require overtime pay for work on Saturdays, Sundays, holidays, or regular days of rest unless an employer requires an employee to work overtime hours on such days. Weekend and night work overtime or double time pay is typically a matter of agreement between the employer and the employee since the FLSA does not require extra pay for such work.

The FLSA imposes no limit on the amount of hours an employee aged 16 or older may work in any work week. In addition, a work week need not coincide with a calendar week but may begin on any day and at any hour of the day.

Overtime pay earned in a particular work week must also be paid on the regular pay day for the pay period in which the wages were earned. Earnings must be calculated as governed by the FLSA.

Furthermore, the regular rate of pay must not be less than the minimum wage and must include all compensation, except for certain payments detailed in the FLSA. These and other specific overtime pay requirements of the FLSA are detailed in several fact sheets provided by the U.S. Department of Labor.

Covered employers of overtime-eligible employees should note that overtime pay cannot be waived by agreement. Also, an employer’s announcement that it will not or no longer cover overtime work, or that overtime work will not be paid unless authorized, will not preclude the employee’s right to overtime pay.

Our law firm represents and advises federal employees on employment-related matters. If you need legal assistance, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.  Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.