Do bonuses and commissions count toward my "regular rate" for overtime?

Yes, most non-discretionary bonuses (production bonuses, attendance bonuses, commissions) must be included when calculating your regular rate for overtime purposes. Only truly discretionary bonuses (a surprise holiday gift from the employer) can be excluded. This often means your overtime rate is higher than 1.5× your stated hourly rate — a gap that generates most unpaid-overtime lawsuits.

Can my employer offer comp time instead of overtime pay?

Not in private-sector employment. Comp time (paid time off in lieu of overtime pay) is only lawful for state and local government employees under FLSA §207(o). If you work for a private company and your employer insists on comp time for hours over 40, that's a wage violation — the cash overtime is owed regardless.

Does on-call time count as hours worked?

Depends on the restrictions. If you must stay at the workplace or cannot effectively use the time for your own purposes (answering calls frequently, responding within 10 minutes), it counts as hours worked. If you're free to live normally but reachable by phone, it usually doesn't. Border cases (tight response windows, geographic restrictions) regularly produce DOL findings for the employee.

How far back can I recover unpaid overtime?

Two years from the date you file, extended to three years if the violation was "willful" — meaning the employer knew or showed reckless disregard for the law. Most courts find willfulness when employers misclassified workers after a prior DOL warning or where the pay structure was deliberately designed to avoid overtime. Liquidated (double) damages are also available in most cases.

When does the law regarding overtime pay apply?

You're entitled to overtime if all three of these are true:You worked more than 40 hours in a single workweek (your employer's defined seven-day stretch).You're classified as "non-exempt" — and remember, your employer doesn't get to decide that unilaterally.Your employer is covered by the FLSA. Most are: either the business does $500,000+ in annual sales and touches interstate commerce (enterprise coverage), or you personally handle goods, calls, or work that crosses state lines (individual coverage, which catches almost any modern job).The exemption test has two parts — your employer has to clear both.Salary test: You earn at least $684/week ($35,568/year).Duties test: Your primary duties have to actually fit one of these five buckets:Executive — you run a department or unit and direct at least two full-time employees.Administrative — your work is office or non-manual, tied to running the business, and you exercise real independent judgment on significant matters.Professional — the job requires advanced knowledge in a field of science or learning (doctors, lawyers, engineers, accountants).Computer employee — systems analyst, programmer, or software engineer earning at least $684/week (or $27.63/hr).Outside sales — you regularly make sales or take orders away from the employer's place of business.Three myths your employer might lean on:"Salaried employees don't get overtime." Wrong — salary alone proves nothing. Both tests have to be met."HR says you're exempt." Misclassification is one of the most common wage violations the DOL finds. The law decides, not the title on your offer letter."You signed a contract waiving overtime." That waiver isn't worth the paper it's printed on. You cannot legally sign away FLSA rights.

Florida Overtime Law (2026) - FLSA & Tipped-Worker Rules

Q: What should I do if my employer doesn't pay overtime?

Cases get won on records, not memory. Start there.Step 1: Keep your own time log. Note when you start, when you stop, and every break. A notebook, a phone app, even photos of the time clock — anything contemporaneous beats your boss's word in front of a DOL investigator.Step 2: Check the math on your pay stubs. Pull every week you cracked 40 hours. The overtime hours have to be paid at 1.5× your regular rate, and the "regular rate" includes most non-discretionary bonuses and commissions — which is why a lot of overtime claims are even bigger than people first think.Step 3: Put it in writing. A short email to HR or your manager asking them to correct the underpayment is enough. Save the response (or the silence).Step 4: File the complaint. The DOL Wage and Hour Division takes complaints at 1-866-487-9243 or online at dol.gov. You can also call an employment attorney — most take overtime cases on contingency, so there's no money up front.

Q: What are the common mistakes to avoid regarding overtime pay?

Don't work off the clock. If your boss tells you to clock out but finish the task, that's textbook wage theft. Make a quick note of when it happened and what you were asked to do.Don't take "you're exempt" at face value. Run the salary and duties tests yourself. If anything's off, you may be owed years of back pay.Don't sit on it. The FLSA gives you 2 years from each paycheck (3 if the violation was willful). Wait too long and the earliest weeks fall off the back end of your claim.Don't quit before you file. You can file while you're still on the payroll, and retaliation for filing a wage complaint is itself illegal under FLSA §15(a)(3).

Researched by Ahmed R. J. Alsaedi, Founder & Head Researcher

Primary sources cited; not legal advice.

Source: Fair Labor Standards Act (FLSA), 29 U.S.C. § 207 — Enacted 1938, enforced by the U.S. Department of Labor.

About this article

Sourced from primary statutes (U.S. Code, CFR, state compiled statutes) and official government agency guidance. Written in plain language for general understanding — this is educational content, not legal advice. Our editorial standards

My employer isn't paying me overtime in Florida?See the focused guide →

Florida Law

Primary statute: 29 U.S.C. § 207 (FLSA, applied through Fla. Stat. § 448.110)

How Florida differs from federal law

1. The Rule: Florida OvertimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. in 2026

Florida has no state overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. statute. OvertimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. in Florida is governed entirely by the federal Fair Labor Standards Act (29 U.S.C. § 207): non-exempt employees must be paid 1.5× their regular rate for hours over 40 in a workweek. There is no daily-hours trigger and no special-day premium. What makes Florida overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. distinct is the base from which the premium is calculated: Florida's constitutional minimum wage (Fla. Const. Art. X § 24) is currently $14.00/hr (rising to $15.00/hr on September 30, 2026) — almost double the federal $7.25/hr floor — so the overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. premium for low-wage workers is meaningfully higher than in pure FLSA states.

2. Who It Covers

The FLSA reaches virtually every Florida employer through either enterprise coverage (annual gross sales of $500,000+) or individual coverage (employees engaged in interstate commerce, including processing credit card transactions, handling out-of-state mail, or using the phone for interstate calls). The Eleventh Circuit applies these tests broadly — even small Florida businesses are usually covered.

3. The Tipped Worker Calculation Trap

Tipped workers in Florida are the most-litigated overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. population. The cash wage floor for tipped employees is currently $10.98/hr ($14.00 − $3.02 tip credit; the credit is fixed at $3.02 under Art. X § 24(c)). The federal trap many employers fall into: overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. must be calculated on the full state minimum wage ($14.00/hr), NOT on the reduced tipped cash wage ($10.98). A tipped server who works 50 hours owes overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. of $21.00/hr (1.5× $14.00) for hours 41–50 — minus the $3.02 tip credit per hour — for a net cash wage of $17.98/hr on overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. hours. Employers who simply pay 1.5× $10.98 = $16.47 on overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. hours are underpaying by $1.51/hr.

4. Exemptions and Misclassification

Florida follows the federal FLSA exemption structure: executive, administrative, professional, computer, and outside sales (29 C.F.R. Part 541). The salary threshold is the federal $684/week ($35,568/year) — Florida has not adopted a higher state threshold like New York or California. Misclassification of non-exempt workers as exempt is the dominant source of Florida overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. litigation, especially in:

Hospitality: Banquet captains, assistant managers, and shift supervisors who actually perform line work alongside subordinates rarely meet the executive-exemption duties test.
Construction and field services: Foremen and crew leads who don't manage two FTEs or lack independent hiring/firing authority are non-exempt.
Healthcare: Working nurse managers, charge nurses, and care coordinators are routinely misclassified.
Independent contractor misclassification: Florida courts apply the FLSA economic realities test — control, investment, opportunity for profit/loss, skill, permanence, and integration into the business. A worker classified as a 1099 contractor who works set schedules at the employer's premises using employer tools is almost certainly an employee under the FLSA.

5. How to Enforce — Step by Step

Reconstruct your hours and shortfall. Save schedules, time-clock punches, text messages assigning hours, and any pay stubs. For each week worked over 40 hours, compute (regular rate × hours over 40 × 0.5) = the overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. premium owed.
Pre-suit notice for state-claim path (Fla. Stat. § 448.110(6)): If you intend to sue under the Florida Minimum Wage Act for unpaid overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. calculated on the state minimum wage, you must first serve the employer with a written notice identifying the dates, hours, and amount owed, and give them 15 days to pay. This step is not required for federal FLSA claims — but skipping it kills any state-law overlay claim.
Federal DOL track: File a complaint with the DOL Wage and Hour Division at 1-866-487-9243 or dol.gov/agencies/whd/contact/complaints. WHD investigates for free, contacts the employer, and can recover back wages + an equal amount in liquidated damages. Typical timeline: 9–18 months.
Private FLSA lawsuit (29 U.S.C. § 216(b)): File in Florida state court or federal court. The Southern, Middle, and Northern Districts of Florida all have well-developed FLSA dockets. Prevailing employees recover back wages + 100% liquidated damages + mandatory attorney's fees. Collective actions (opt-in) are routine.
Statute of limitationsThe deadline for filing a lawsuit after the event that caused the harm. It varies by claim type and state — for example, 2 years for personal injury in many states, 6 years for most written contracts.: 2 years from the date the wages were due — 3 years for willful violations (29 U.S.C. § 255(a)). The clock runs separately for each unpaid pay period. Filing the lawsuit stops the clock; pre-suit demand letters do not.

6. Damages and Penalties

Back wages: The unpaid 0.5× overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. premium for every overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. hour worked.
100% liquidated damages (29 U.S.C. § 216(b)): Equal to the back-wage award — total recovery is 2× back wages. Employers can avoid liquidated damages only by proving subjective good faith AND objective reasonable belief — a rare defense.
Attorney's fees and costs: Mandatory for prevailing employees under § 216(b).
Florida Minimum Wage Act overlay (Fla. Stat. § 448.110): If your overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. claim is also a minimum-wage claim (sub-minimum overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules.), Florida adds its own $1,000 per violation civil penalty plus attorney's fees, with a 4-year SOL (5 years for willful violations) — meaningfully longer than the federal 2-year window.

7. Resources

US DOL Wage and Hour Division (Florida district offices): Jacksonville, Miami, Orlando, Tampa — file at dol.gov/whd/complaints or call 1-866-487-9243
Florida Attorney General — Civil Rights / Wage TheftWhen an employer fails to pay the wages legally owed — including unpaid overtime, off-the-clock work, kept tips, or below-minimum-wage pay. It is illegal under federal and state wage-and-hour laws.: myfloridalegal.com — (866) 966-7226
Florida Bar Lawyer Referral Service: (800) 342-8011 — wage-and-hour referrals
Florida Legal Services: floridalegal.org

Additional Steps in Florida

Pick your track based on the size of the claim and the SOL window you need. Federal FLSA gives 2 years (3 if willful) + liquidated damages + attorney's fees — and no pre-suit notice. The Florida Minimum Wage Act overlay gives you a 4-year SOL (5 willful) and a $1,000 civil penalty — but Fla. Stat. § 448.110(6) requires you to serve a written notice first and wait 15 days. Most workers run both tracks in parallel; the state claim catches anything the federal SOL has lost.

Relevant Law: 29 U.S.C. § 207 (FLSA overtime requirement — 1.5× after 40 hours/week, no Florida state overtime statute); 29 U.S.C. § 216(b) (private right of action + 100% liquidated damages + mandatory attorney's fees); 29 U.S.C. § 255(a) (2-year SOL, 3-year for willful); Fla. Stat. § 448.110 (Florida Minimum Wage Act — overtime base + § 448.110(6) pre-suit notice for state-law overlay); Fla. Const. Art. X § 24 (constitutional minimum wage indexed to CPI-W); 29 C.F.R. § 531.59 (tipped employee overtime calculated on full minimum wage, not tip-credit wage)

Federal baseline: Overtime Pay nationwide

What is this right?

The rule is older than your grandparents and it hasn't changed: work more than 40 hours in a single workweek and your employer owes you at least 1.5 times your regular rate for every hour past 40. That's the Fair Labor Standards Act, on the books since 1938.

It covers most hourly workers automatically. If you're salaried but earn less than $684 a week ($35,568 a year), you're owed overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. no matter what your job title says. Above that salary line, your employer can call you "exempt" — but only if your actual day-to-day duties fit one of the narrow categories the DOL spells out (executive, administrative, professional, computer, or outside sales). The label isn't enough; the duties have to match.

One thing worth knowing: the DOL tried to raise the salary threshold to $58,656 in 2024, which would have pulled millions of mid-level salaried workers back into overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. eligibility. A federal judge in Texas vacated the rule in November 2024, so the line is still $35,568 going into 2026.

When does it apply?

You're entitled to overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. if all three of these are true:

You worked more than 40 hours in a single workweek (your employer's defined seven-day stretch).
You're classified as "non-exempt" — and remember, your employer doesn't get to decide that unilaterally.
Your employer is covered by the FLSA. Most are: either the business does $500,000+ in annual sales and touches interstate commerce (enterprise coverage), or you personally handle goods, calls, or work that crosses state lines (individual coverage, which catches almost any modern job).

The exemption test has two parts — your employer has to clear both.

Salary test: You earn at least $684/week ($35,568/year).
Duties test: Your primary duties have to actually fit one of these five buckets:
- Executive — you run a department or unit and direct at least two full-time employees.
- Administrative — your work is office or non-manual, tied to running the business, and you exercise real independent judgment on significant matters.
- Professional — the job requires advanced knowledge in a field of science or learning (doctors, lawyers, engineers, accountants).
- Computer employee — systems analyst, programmer, or software engineer earning at least $684/week (or $27.63/hr).
- Outside sales — you regularly make sales or take orders away from the employer's place of business.

Three myths your employer might lean on:

"Salaried employees don't get overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules.." Wrong — salary alone proves nothing. Both tests have to be met.
"HR says you're exempt." Misclassification is one of the most common wage violations the DOL finds. The law decides, not the title on your offer letter.
"You signed a contract waiving overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules.." That waiver isn't worth the paper it's printed on. You cannot legally sign away FLSA rights.

What to Do If Your Employer Doesn't Pay Overtime

Cases get won on records, not memory. Start there.

Step 1: Keep your own time log. Note when you start, when you stop, and every break. A notebook, a phone app, even photos of the time clock — anything contemporaneous beats your boss's word in front of a DOL investigator.

Step 2: Check the math on your pay stubs. Pull every week you cracked 40 hours. The overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. hours have to be paid at 1.5× your regular rate, and the "regular rate" includes most non-discretionary bonuses and commissions — which is why a lot of overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. claims are even bigger than people first think.

Step 3: Put it in writing. A short email to HR or your manager asking them to correct the underpayment is enough. Save the response (or the silence).

Step 4: File the complaint. The DOL Wage and Hour Division takes complaints at 1-866-487-9243 or online at dol.gov. You can also call an employment attorney — most take overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. cases on contingency, so there's no money up front.

What should you NOT do?

Don't work off the clock. If your boss tells you to clock out but finish the task, that's textbook wage theftWhen an employer fails to pay the wages legally owed — including unpaid overtime, off-the-clock work, kept tips, or below-minimum-wage pay. It is illegal under federal and state wage-and-hour laws.. Make a quick note of when it happened and what you were asked to do.

Don't take "you're exempt" at face value. Run the salary and duties tests yourself. If anything's off, you may be owed years of back pay.

Don't sit on it. The FLSA gives you 2 years from each paycheck (3 if the violation was willful). Wait too long and the earliest weeks fall off the back end of your claim.

Don't quit before you file. You can file while you're still on the payroll, and retaliation for filing a wage complaint is itself illegal under FLSA §15(a)(3).

Florida overtime runs on the federal FLSA — 1.5× after 40 hours/week — but tipped overtime must be calculated on the full $14.00/hr state minimum wage, not the $10.98 tipped cash wage. The Florida Minimum Wage Act adds a 4-year SOL (vs. FLSA's 2) and a $1,000 per-violation civil penalty.

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Common Questions

When am I entitled to overtime pay?

Under the federal Fair Labor Standards Act, non-exempt employees must be paid 1.5 times their regular rate for hours worked beyond 40 in a workweek. Some states add daily overtime — California, for example, pays overtime after 8 hours in a single day.

Does overtime apply daily or only weekly?

Federal law uses a 40-hour weekly threshold. A handful of states also require daily overtime — for example, time-and-a-half after 8 hours and double-time after 12 hours in a day in California. Your state's section above notes any daily-overtime rule that applies.

Am I exempt from overtime?

Exemption depends on your actual job duties and salary level, not your job title alone. Many salaried workers are still owed overtime. If you're unsure, your state's section above and the federal duties tests can help you check whether you qualify.

What can I recover for unpaid overtime?

You can generally claim the unpaid overtime wages, and many states add liquidated damages plus attorney's fees. Filing deadlines are commonly two to four years. Keep your own record of the hours you worked as evidence — see your state's section for specifics.

Overtime Pay in other states

Same topic, different jurisdiction. Pick the one that applies to you.

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Every reference below links to its primary source — the statute book, regulator, or court — and carries a verification date. See our citation methodology for how this works.

Florida

Federal

StatuteFair Labor Standards Act § 7 (overtime)
Establishes the 1.5× regular rate requirement for hours worked over 40 in a workweek.
Regulation29 C.F.R. Part 541 (white-collar exemptions)
DOL regulations defining the executive, administrative, professional, computer, and outside-sales exemption tests; salary threshold remains $684/week after the 2024 rule was vacated.
StatuteFLSA § 16(b) (private right of action, liquidated damages)
Authorizes employee suits for unpaid overtime plus an equal amount in liquidated damages and attorney's fees.
Agency guidanceDOL Wage and Hour Division — Overtime Pay
Department of Labor's official overtime guidance and complaint-filing portal.