Steven Eheart
Question: Must a nonexempt employee who is scheduled to work 14 hours in a two-week pay period be paid overtime if they work more than the 14 hours?
Answer: This question gets at four core things to know about overtime:
First, overtime is based on hours an employee works, not hours the employee is scheduled to work. When evaluating whether overtime is owed, ignore any scheduled hours, and focus only on hours the employee actually worked.
Second, whether you must pay overtime is based only on hours worked during each regular workweek. So, if the regular workweek is Sunday at 12:00 a.m. to Saturday at 11:59 p.m., only the hours worked during that period are relevant to whether overtime is owed. The regular pay period is immaterial to whether overtime is paid, and you shouldn’t average hours worked in two or more workweeks to compute overtime.
Third, overtime under the Fair Labor Standards Act (FLSA) is due only if an employee works more than 40 hours during a regular workweek.
Fourth, some states also have additional overtime requirements. Colorado generally requires paying overtime when an employee: (1) works more than 40 hours during a regular workweek; (2) works more than 12 hours in a regular workday; or (3) works 12 consecutive hours without regard to the start and end time of the regular workday. If an employee’s workweek includes more than one of those three instances, you must calculate the overtime owed under each instance and apply the calculation most favorable for the employee. Colorado has industry exemptions to this general rule. For example, agricultural employees, certain employees in the ski industry, and medical transportation employees have different overtime requirements.
Let’s put these four core things together under the FLSA. Assume your employee is scheduled to work 14 hours in a two-week pay period but actually works 14 hours in the first regular workweek and 41 hours in the second regular workweek of that pay period. You only need to be concerned about the hours worked during each workweek, not the scheduled hours. So, for the two-week pay period, you would pay one hour of overtime based on hours the employee worked in the second workweek.
Let’s also put these things together under Colorado’s overtime rules. Assume your employee works 14 hours in the first regular workweek and works those hours within the same workday. Also assume the employee works 41 hours in the second workweek, including one workday during which the employee works 14 hours. In the first workweek, you would pay two hours of overtime because the employee worked more than 12 hours during a regular workday. In the second workweek, you would have to determine which calculation is more favorable to the employee: (1) two hours of overtime because the employee worked more than 12 hours during a regular workday or (2) one hour of overtime because the employee worked more than 40 hours during the regular workweek.
