Ask whether your salary is exempt from overtime

You are on a salary. Your weeks run well past 40 hours and the extra is never paid, because a salary is supposed to cover whatever the job takes. In the United States that is sometimes true. Sometimes the word “salaried” on your contract is not what the law looks at, and the hours past 40 are owed at one and a half times your regular rate.

If you are on a salary and regularly work more than 40 hours a week, find out whether your job is legally exempt from overtime, because in the United States a salary alone does not make it so.

This page is about US federal law. If you are paid by the hour, a page here called Check the payslip against your own hours fits better, and if you are in the UK there is a short section for you at the end.

What decides it

Overtime in the US comes from the Fair Labor Standards Act. The US Department of Labor says that unless a worker is exempt, hours past 40 in a week must be paid at no less than one and a half times their regular rate. For the usual exemptions in office and management jobs, the Department says three things must all be true. You are paid a set salary of at least $684 a week, which is $35,568 a year. That salary is a predetermined amount that is not cut because you did less work or did it worse. And your actual duties match what the exemption describes. An executive’s main job, for example, must be managing the business or a department and directing at least two other employees. The Department states that a job title does not decide it, and that being paid a salary is not enough on its own.

Some people say employers call jobs salaried when they should be hourly, which leaves the worker with no set tasks, no set finishing time and no clear point at which overtime would start. One person drew the same line from the other side: being salaried and being exempt are two different things.

So the quick tests come in this order. First, the weekly number: for those usual exemptions, a salary under $684 a week is not enough. Second, the duties: the exemption goes by what you actually do most of the day, not by what the job posting says. Third, how the pay is worked out, which is the next section.

How you are paid matters too

In 2023 the US Supreme Court decided Helix Energy Solutions Group v. Hewitt. The worker was paid a fixed amount for each day he worked, between $963 and $1,341, which came to more than $200,000 a year. The Court held that a worker paid by the day does not count as paid on a salary basis, however much they earn, unless the employer also guarantees a weekly amount that bears a reasonable relationship to what the worker usually earns. His employer gave no such guarantee, so he was not exempt, and the overtime law applied to him.

A bigger version of that story went around online: that any salaried worker who loses a day’s pay is now owed overtime. One person said the ruling is about daily pay only, and that a standard salaried worker who is docked for time off is not affected by it. The Department’s own rule still allows an employer to deduct pay when you miss one or more full days for personal reasons, and for a full day of sickness under a real sick-pay plan. What the rule does not allow is deducting for part of a day. So the ruling matters most if your pay is worked out per day or per shift with no weekly guarantee behind it. If you are paid the same set amount every week, your position is decided by the three tests above.

Two questions were left open. One person wondered whether the ruling reaches school staff who are docked for sick or personal days beyond their allowance, and one was unsure how it applies to holiday leave that salaried staff are made to use. Those are questions for the Wage and Hour Division or a lawyer, not for online comments.

If you are offered a salary in place of hourly pay

Some people suggest being wary of an offer to move from hourly to salaried, or of a bigger job title for the same work. Their reason is that the change can remove overtime pay without a matching rise in base pay, so the hourly rate you actually earn falls. Some people add that a salary marketed as high can come to a low hourly figure once the unpaid hours are counted. The arithmetic is simple: yearly pay divided by 52, then divided by the hours you really work. A $50,000 salary comes to about $24 an hour at 40 hours a week, and about $17.50 an hour at 55.

Under the Labor Department’s rules a change of label does not change the answer. The duties and the pay do.

If it turns out you are owed

Some people suggest that if the person above you blocks a payment, you go over them to payroll, human resources or a higher manager, and if that fails, to the Department of Labor or its equivalent. The Department’s Wage and Hour Division takes wage complaints on 1-866-487-9243. It says complaints are confidential and that an employer may not retaliate against a worker for filing one or for cooperating with an investigation. One person warns that a complaint to human resources may be recorded and later used as grounds for discipline, and suggests the Department of Labor route as the safer one.

The Department says a back-pay claim generally reaches back two years, or three where the violation was willful. A worker can also sue for the back pay plus an equal amount as liquidated damages, plus attorney’s fees and court costs. One person says that because the law lets a winner recover attorney’s fees, it is easy to find lawyers who offer a free first meeting. The Wage and Hour Division asks you to bring your pay details, your employer’s name and address, and daily records of when you started, finished and took breaks.

That last item is the hard one for people on salary. One person notes that a claim needs a record of the overtime hours worked, and people on salary often have none, because nothing makes them clock in. The page Check the payslip against your own hours is about keeping that record.

The costs are real, and people are honest about them. Some people warn that refusing unpaid extra hours can get you labelled as a poor fit or worse, though some add that when a whole team refuses, the dynamic changes. In one person’s account, tracking the hours and reporting the shortfall got them part of the money back, but the manager was moved up and the person was handed extra unpaid payroll duties. In another person’s account, pointing out the missing hours brought a raise, and the mistake was put right. One person points out that even a worker who is owed overtime can be fired for refusing to stay when asked, so being owed the pay does not mean you can leave without risk. If your state also has its own wage law, the Department says the federal law does not override one that protects you more.

If you check and you are exempt

Then the hours are not owed, and what is left is a judgement call about what to do with them. One person suggests asking the boss outright whether they want you to work the extra hours or drop other tasks, because it makes the employer say what the extra work costs. People split on whether to work the hours anyway. One person says short-term gain and a better review can make it worth it, as long as you are not doing it in expectation of future pay. Another says it sets a precedent and that you should leave at the end of your shift whatever the workload. What decides it, they said, is the industry, whether the extra work will be noticed, and how much you need the money. This page does not pick for you.

Who this page is not for

If you are paid by the hour, you are not in the exempt question at all: your overtime is owed, and your task is to catch errors, which the payslip page covers. If you work outside the United States, the tests above do not apply to you. In the UK, the government says employers do not have to pay workers for overtime, that the contract will usually say what overtime pay there is, and that your average pay across all the hours you work must not fall below the National Minimum Wage. Acas, the UK’s workplace advice service, takes questions on pay and the minimum wage on 0300 123 1100, Monday to Friday, 8am to 6pm, and Citizens Advice can help too. Elsewhere, your country’s labour office or union is the place to start.