When does 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.

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Overtime Pay in Virginia

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 should you NOT do about 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).

By Ahmed Alsaedi, Founding Editor

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

About this article

Reviewed by the Commoner Law Editorial Team. 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 Virginia?See the focused guide →

Virginia Law

Primary statute: Va. Code § 40.1-29.2 (VA Overtime Wage Act)

How Virginia differs from federal law

Virginia enacted its own overtime law — the Virginia Overtime Wage Act (VOWA) — effective July 1, 2021:

VOWA provides state-level overtime protections independent of the federal FLSA
Overtime is required after 40 hours per workweek at 1.5x the regular rate
Virginia does not require daily overtime
VOWA applies to employees covered by the FLSA, providing an additional state remedy
Virginia allows employees to bring private lawsuits for unpaid overtime with potential recovery of liquidated damages, prejudgment interest, and attorney fees
The statute of limitations under VOWA is 2 years (3 years for willful violations), as amended by HB 1173 effective July 1, 2022

Additional Steps in Virginia

File unpaid overtime complaints with the Virginia Department of Labor and Industry at (804) 371-2327 or online at doli.virginia.gov. You can also file with the federal DOL Wage and Hour Division or bring a private lawsuit under VOWA in Virginia circuit court.

Relevant Law: Virginia Overtime Wage Act, Va. Code § 40.1-29.2. Federal FLSA, 29 U.S.C. § 207.

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 overtime 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 overtime 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 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.

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 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.

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 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).

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Common Questions

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.

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.

Virginia

StatuteVirginia Overtime Wage Act, Va. Code § 40.1-29.2
Agency guidanceVirginia DOLI — Overtime Pay Information
Agency guidanceDOL — Fair Labor Standards Act Overtime Rules

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.