Overtime in a Bi-Weekly Pay Period: 80 Hours Is Not the Line

The rule: each workweek stands alone

The Fair Labor Standards Act (FLSA) requires time and a half for hours over 40 in a workweek. The Department of Labor’s regulation on this point, 29 CFR 778.104, uses almost the same example as this guide. An employee who works 30 hours one week and 50 the next must get overtime for the second week, even though the two weeks average 40. The rule holds whether the employee is paid daily, weekly, biweekly, monthly or on another basis. The Department’s overtime page puts it in one sentence: “Averaging of hours over two or more weeks is not permitted.”

Overtime cannot be waived, either. Fact Sheet #23 says an agreement that only 8 hours a day or 40 hours a week will be counted as working time fails the test. Unauthorized overtime that is worked still has to be paid.

The 30 + 50 example in dollars

Here is the regulation’s example run through the site’s time card engine at $24.50 an hour. The workweek starts Sunday.

• Week 1: Monday to Friday, 8:00 AM to 2:00 PM. Each day is 6:00 (6.00 hours); the week is 30:00 (30.00 hours).
• Week 2: Monday to Friday, 7:00 AM to 5:30 PM with a 30-minute unpaid meal. Each day is 10:00 (10.00 hours); the week is 50:00 (50.00 hours).

Counted the right way, the period pays $1,715.00 straight time plus $367.50 overtime, $2,082.50 gross.

Averaged over the period, the same 80 hours would all be straight time: $1,960.00. The gap is $122.50, the half-time premium on the 10 overtime hours. That is the amount a pay-period average leaves out.

Under 80 hours can still include overtime

The total for the period does not have to reach 80 for overtime to appear. Take the site’s standard example week:

• Monday 8:06 (8.10 hours)
• Tuesday 10:15 (10.25 hours)
• Wednesday 7:40 (7.67 hours)
• Thursday 10:30 (10.50 hours)
• Friday 7:57 (7.95 hours)
• Saturday 4:30 (4.50 hours)

That week totals 48:58 (48.97 hours). Follow it with a light week of three 6-hour days, 18:00 (18.00 hours).

The period totals 66:58 (66.97 hours), well under 80. Week 1 still has 8:58 (8.97 hours) of overtime. At $24.50 the period pays $1,421.00 straight time and $329.53 overtime, $1,750.53 gross. The light second week does not cancel the first week’s overtime.

The reverse is also true. Two weeks of exactly 40:00 make 80 hours with no overtime at all.

Your workweek, not your pay period, sets the line

Because everything turns on the workweek, it helps to know exactly what it is.

• A workweek is a fixed and regularly recurring period of 168 hours: seven consecutive 24-hour periods.
• It does not have to match the calendar week. It can begin on any day and at any hour, and different groups of employees can have different workweeks.
• Once set, it stays fixed regardless of the schedule. An employer can change it only if the change is meant to be permanent and is not designed to avoid overtime.

So the first step in checking a bi-weekly stub is to ask when your workweek starts, for example “Sunday at 12:00 AM”. Then split your time card at that point. A night shift that crosses the start of a new workweek can have its hours split between the two weeks. The hours worked guide shows how to add a week in minutes and handle overnight shifts.

Semimonthly and monthly pay periods

Semimonthly pay (the 15th and the last day) and monthly pay don’t line up with weeks at all. A workweek often starts in one pay period and ends in the next. The overtime rule doesn’t move. You still count each fixed workweek on its own.

What changes is timing. The general rule in 29 CFR 778.106 is that overtime earned in a workweek is paid on the regular payday for the period in which that workweek ends. If the amount can’t be worked out by then, the employer may pay it as soon as practicable after. In no case may it be later than the next payday after the amount can be computed. There is no federal requirement that overtime be paid weekly.

That is why overtime on a semimonthly stub sometimes shows up one check late. The question to ask is which workweek the overtime belongs to, not how many hours fall between the 1st and the 15th.

The exceptions that do use longer periods

A few arrangements do use more than seven days, and each is specific:

• Hospitals and residential care establishments may agree with an employee, before the work is done, to use a 14-day period. Overtime is then due for hours over 8 in any workday and over 80 in the 14 days, at 1.5× (29 U.S.C. 207(j)). Both parts apply, so it is not a plain 80-hour line.
• State hospital options: Minnesota, North Dakota, Pennsylvania and Vermont let hospitals and some care employers use a similar 14-day period with overtime after 8 hours a day or 80 in the period, by agreement or election.
• Public fire protection and law enforcement employees may be on work periods of 7 to 28 days under section 207(k), with their own thresholds.
• State daily rules run alongside the weekly count. In California, for example, week 2 of the 30 + 50 example has 2:00 over 8 hours each day. The 10:00 of overtime is then daily overtime rather than weekly, and the pay is the same $2,082.50.

If none of these applies to you, the line is 40 hours in each workweek. The overtime laws by state guide lists the state rules that add to it.

Employers: keep daily and weekly hour totals for each workweek, not only period totals. The time records guide lists what federal law requires on file. Workers: keep your own copy of your hours per week. If your pay doesn’t match the weekly count, ask your employer first. The U.S. Department of Labor’s Wage and Hour Division (1-866-487-9243) or your state labor department can look into it.

Next step

Enter both weeks of your pay period in the time card calculator with two-week mode on. It keeps the two workweeks separate, splits shifts at the workweek boundary, and shows overtime for each week on its own.