Is Not Paying Overtime Illegal in the US? - The Full Guide


Whether you are an employer or an employee, knowing the federal laws that relate to overtime is essential for creating a fair workplace. Overtime is nothing new. Employees around the country are often nudged into working overtime for a period to get a certain contract or job fulfilled that would otherwise not be done on time. 

For a lot of employees, as long as they know they will be fairly paid for their time, they are happy to pitch in and help out their boss. Not only does saying yes to overtime look good on paper for a potential promotion down the line, but it also means extra money in the bank account.

In this article, we will dispel the misinformation and myths that surround paying overtime in the U.S on a federal level so that every employer is aware of their requirements. And, in reverse, every employee is aware of their rights. 

Also read: Give Feedback To Employees

Table Of Contents

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Do Employers Have to Pay Overtime After 40 hours?

Music to every wage employee’s ears - yes, employers legally have to pay their wage staff overtime on hours worked over the 40-hour working week. The Fair Labor Standards Act (FLSA) states that non-exempt employees are required to be paid time and a half (150%) of their standard wage for overtime hours. 

The big point in this is to understand overtime hours in terms of a week, and not a day. Some employees get stuck in the mindset that if they work a long and arduous 10-hour day they are automatically entitled to overtime. This isn’t true. If their employer were to give them a shorter day on their last working day of the week to even out their long day, then no overtime is required to be paid. 

Also read: What Is Internal Equity? 

Can Employers Adjust Worker Hours to Avoid Overtime?

As we just pointed out, employers do have the right to adjust their employee’s hours to avoid paying overtime. However, these adjustments can only be made in the working week period. Even if their employees get paid on a two-week or even a month-long period, overtime our adjustments still, by law, must fit into a weeklong period.

For example, say a particular employee works a 60-hour week one week and only 20 hours the following week. By law, they are entitled to 20 hours of overtime for the 60-hour week even in a two-week or an 80-hour pay packet. 

Is There a Limit On Overtime Hours For Employees?

Against popular opinion, no, there is no limit on the number of overtime hours employees are legally allowed to work. However, employers aren’t legally required to pay their employees for work hours undertaken on the weekends, holidays, and predetermined days of rest. If an employee has worked more than an 8-hour day on these days then they will be entitled to overtime pay.


Can Employees Legally Work Overtime Without Their Employer’s Approval? 

This is one of the biggest myths that surround overtime in the workplace. Unfortunately, many employers will try to get out of paying their employees overtime if they didn’t approve the overtime prior to it being undertaken

If a job has to be done there and then and the boss is nowhere to be found, then employees will take it upon themselves to complete the task even if it stretches into overtime. This work deserves to be paid an overtime wage accordingly, but their employer may feel like it wasn’t necessary at that point in time.

This grey area can make for some awkward employee/ employer conversations, but at least employees can know that the federal law is on their side. If an employer feels like one of their employees is purposefully staying behind for unnecessary reasons, then they can take action immediately against this, but they will still have to pay them fairly for work already completed. 

Also read: Can I Be Fired for Being Sick Too Much?

How Do Companies Get Away With Not Paying Overtime?

There are literally millions of established employers that pay employees on a regular basis currently operating across America. This mind-boggling scope of employers means they are some that are trustworthy and some that are not. Even if just a small percentage of employers try and get away with not paying overtime fairly, this will still affect a great number of workers. Below is a list of some of the ways that employers may try to swingle their workers out of overtime pay. 

  • Some employers may ask their employees to clock out on their timesheet or the company’s time system but then ask them to remain working. This could be an honest lapse of judgment or a sneaky ploy, but nonetheless, they should pay their employer overtime. 

  • Another trick of the trade undertaken by dodgy employers is to get their employees to sign a formal contract. These types of contracts often state that the employer will not be paid overtime regardless of whether they have worked more than 40 hours in the week. Luckily, no such contract supersedes the law, and as such, will have no legal standing in court. 

  • Employers can also cheat their employees out of overtime pay by purposefully misclassifying their employee status. Independent contractors, for example, are workers who are exempt from overtime pay. An employer may list an employee as an independent contractor even though they fulfill a role that is in line with a nonexempt employee. 

  • Employers may also avoid paying their employers overtime for work undertaken at home. If they require an employer to answer calls, send emails, and do their regular work duties at home and they happen to work over a 40-hour week this should count as overtime. 

Also read: The Average HR Generalist Salary 
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So there you have it. You now have a basic legal knowledge of overtime. Thankfully, the law will often fall on the employers’ side when it comes to overtime pay. It is a real travesty when employers try to get out of paying their employees fairly. Nobody likes to work for free. So whether you’re an employer or employee, you can take this knowledge in your stride and help it make your workplace a fairer place for all. 

Check out our check stub generator where you can generate pay stubs so they can be printed and used.

Also read: Human Resources Career Path

Frequently Asked Questions

Yes, some states have their own overtime laws that differ from or supplement the FLSA. Employers must comply with both federal and state laws when it comes to overtime pay.

No, employees cannot waive their right to overtime pay. Employers are required to pay overtime to eligible employees, regardless of any agreements or waivers.

Overtime pay is calculated at a rate of at least one and one-half times the employee's regular rate of pay for each hour worked over 40 hours in a workweek.

Employees who believe their overtime pay has been unlawfully withheld should contact their HR department, file a complaint with the U.S. Department of Labor, or consult with an employment attorney.

Generally, not paying overtime is illegal in the U.S. for eligible employees, according to the Fair Labor Standards Act (FLSA). However, exceptions apply to certain types of employees and circumstances.

Employers who fail to pay overtime can face penalties, fines, and back pay for affected employees. Additionally, they may be subject to lawsuits and damage to their reputation.

Overtime pay is the additional payment made to employees who work beyond their standard work hours, typically more than 40 hours in a workweek.

Employers can consult the U.S. Department of Labor's Wage and Hour Division website, state labor department websites, or seek advice from an employment attorney to ensure compliance with overtime laws.

Employees who work more than 40 hours per week and are not considered exempt under the FLSA are eligible for overtime pay. This includes hourly, non-exempt salaried, and some other types of employees.

Employees who are classified as exempt under the FLSA, often due to their job duties and salary level, are not eligible for overtime pay. This includes certain executive, administrative, professional, and outside sales employees.
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Is Not Paying Overtime Illegal in the US? - The Full Guide
Samantha Clark

A Warrington College of Business graduate, Samantha handles all client relations with our top-tier partners. Read More

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