Everybody knows that a workweek means the days and/or hours a worker puts in at the job every week. But there is no such thing as a standard workweek in the U.S. While the federal Fair Labor Standards Act suggests that a "normal" work week is 40 hours, the workweek of one individual may look very different from that of another. Three days? Four days? Six days? The government doesn't regulate work schedules at all, but it does specify that employees must be paid overtime if they work more than 40 hours in a seven-day period.
Defining a Workweek
Many people think of a workweek as Monday through Friday, 9 a.m. to 5 p.m. But although this is a very typical 40-hour workweek for some American office employees, it is by no means universal, nor is it mandated by employment law. Some people work four 10-hour days, some put in the most hours on the weekends.
The definition of a workweek in this country includes all hours an employee is required to be on the job in a one-week period, whether at an office, warehouse or some other location. Typically, a workweek is between 35 and 44 hours. The government does not limit the hours, however, and an employer can ask an adult employee to put in workweeks of 50, 60 or even 80 hours. A worker who doesn't like the hours is free to find another job. Protections do apply for child workers.
Federal Restrictions on Workweeks
Not only is an employer free to require more than 40 hours in an adult worker's workweek, but there are very few restrictions on what can be required of employees. Although the federal government and state governments set minimum wages for employees who are paid by the hour, there are no laws defining a certain number of hours as full time or part time. There are no laws mandating other benefits either, like raises, extra pay for weekend work, or any type of paid leave or time off, including vacation pay, sick pay or holiday pay.
While the government does not set a full-time workweek at 40 hours, this is implied by the overtime laws. The Fair Labor Standards Act (FLSA) provides that an employer must pay nonexempt workers time and a half in certain cases. That is, under the FLSA an employer must pay an employee at a higher rate after 40 hours of work performed in a single workweek. The rate must be at least one and one-half times the employee's regular rate of pay.
Note that there are some exceptions to the overtime provisions, like for police officers, firefighters and hospital workers.
Hours Included in the Workweek
A workweek includes the sum of the hours in seven consecutive workdays, starting on any day the employer sets. A workday begins when an employee starts performing their work responsibilities. Employers do not need to, and usually don't, pay workers for their commute time, even if it is an hour or two in each direction. Similarly, hours paid for vacation days do not count toward the hours in a workweek.
The workday ends when a worker stops performing their work duties. A workday doesn't always stop when a scheduled work shift is over or when a set number of hours have passed. If an employer asks or insists that a worker continue performing their duties after their shift is over, those hours count too, including cleaning up or closing up duties. All hours that a worker labors for their employer are counted, and when the number in a workweek tops 40, the employee is entitled to time and a half for any additional hours.
Travel for Work Counts
As discussed, home-to-work commute time does not count as part of a worker's weekly hours. However, when an employee is asked to travel from their usual worksite as part of their job, the travel time does count as on-the-job hours. For example, if an employee is told to travel to another city for a special assignment, the work day begins when they leave the house or office to head out of town. And if an employee's job involves regular travel, as might be the case for a pilot or a traveling salesperson, all travel time is work time, such as travel that keeps an employee away from home overnight during an employee’s regular shift or hours worked, according to the department.
Minimum Hourly Wage
The overtime rate due to an employee who works more than 40 hours in a workweek is one and one-half their usual hourly rate. This is impacted by another part of the federal wage and hour protections: the minimum wage laws. The federal minimum wage law applies to adult workers across the nation, but states also have authority to set minimum wages. The basic rule is that a worker is entitled to whichever rate of pay is higher.
The federal minimum wage is currently $7.25 an hour, and has been at that amount for some years. States are all over the map in their minimum wages. Some states, like California, authorize cities to set minimum wages for people working within the city limits, and many do. San Francisco, for example, has one of the highest minimum wages in the nation at $15 an hour. Of course, an employer can opt to pay an employee at an hourly rate that is higher than the applicable minimum wage, but they cannot pay less.
Calculating an Overtime Rate
Calculating overtime is not difficult. To figure out overtime, take the normal hourly rate and multiply it by 150 percent. For example, if a worker makes $7.25 an hour, the overtime rate for that person is 7.25 times 1.5, or $10.87. A worker who makes $15 an hour will receive an overtime rate of 15 x 1.5 or $22.50 an hour.
However, states also have the authority to increase the overtime formula and, once again, the employee is entitled to the more generous wage and hour protections. California, for example, requires that an employer pay overtime in more circumstances than federal law mandates, and even requires that they pay double overtime in certain situations. The state mandates that a day's work equals eight hours and requires overtime pay for employment beyond eight hours in any workday or more than six days in any workweek. In California, overtime pay must be paid as follows:
- One and one-half times the employee's regular rate of pay for all hours worked over eight and up to 12 in any workday.
- One and one-half times the employee's regular rate of pay for the first eight hours worked on the seventh consecutive day of work in a workweek.
- Double the employee's regular rate of pay for all hours worked in excess of 12 hours in any workday.
- Double the employee's regular rate of pay for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.
The double-time rate is obviously twice the regular rate. An employee earning $7.25 an hour would make $15 an hour with double time; an employee earning $15 an hour would make $30 an hour with double overtime.
Exempt vs. Nonexempt Employees
The Fair Labor Standards Act (FLSA) that sets minimum wage and overtime doesn't cover every employee. It generally covers only workers in companies that engage in interstate commerce.
The FLSA does not cover businesses with less than $500,000 in annual dollar volume of business, so employees of those companies may not be covered. However, it does cover the employees of some companies regardless of their dollar volume of business. These include hospitals and institutions that house and care for the aged, mentally ill, sick or disabled; schools for disabled or gifted children; colleges; and government agencies. The FLSA also covers domestic service employees working in private homes.
The FLSA exempts some employees from overtime pay provisions and some from both overtime and minimum wage provisions. Employers have to check for the details of each exemption. For example, executive and professional employees are exempt from both the minimum wage and overtime pay requirements. So are seamen working on foreign boats, teachers and outside sales employees. However, taxi drivers, railroad employees, new editors and farm workers are exempt only from overtime pay requirements.
Enforcing FLSA Overtime Laws
Wage and hour protections are only valuable to employees if their employers actually comply with the laws. But the law is not without teeth. The Fair Labor Standards Act contains language that establishes several mechanisms an employee can use to get their rights enforced for overtime work.
The Wage and Hour Division of the Department of Labor is charged with enforcing FLSA provisions. They do this in large part by conducting investigations of employers to determine if they are complying with the law. If the investigation reveals violations of the FLSA, the Division will order changes in employer policy to bring the business into compliance. An employee can take action to trigger an investigation.
If an employer is not sticking to the overtime rules, an employee can file a complaint by contacting the local Wage and Hour Division Office. It's also possible for an employee to call the program's toll-free help line at 866-4USWAGE (866-487-9243) to get information on how to proceed.
Filing a Claim Against an Employer
As an alternative, the FLSA gives an employee the right to file a civil lawsuit against the employer. The statute of limitations for a violation is two years, while for a deliberate violation, it's three years. That means that an employee who files suit can generally seek up to two years of back pay, but they can ask for up to three years if the employer acted willfully to violate the employee's rights.
The compensation is made even more attractive because the FLSA allows them to seek an amount equal to their lost pay in liquidated damages, as well as attorney's fees and court costs.
An employer is prohibited by the FLSA from firing or discriminating against a worker for taking action to enforce their rights. This includes an employee who files a complaint with an employer or the Wage and Hour Division, or who brings a civil action under the FLSA.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.