⏱️ Federal Overtime Rules (FLSA)
The Fair Labor Standards Act (FLSA) is the federal baseline for overtime. Every state builds on top of it — some add daily OT (California, Nevada, Alaska, Colorado), others follow it exactly. Understanding the federal floor is essential because it always applies, regardless of which state the project is in.
The federal OT rule
FLSA basics
| Rule | Details |
|---|---|
| OT trigger | Over 40 hours in a workweek |
| OT rate | 1.5x the regular rate of pay |
| Daily OT | None required by federal law |
| Double time | None required by federal law |
| Who's covered | Most construction workers (non-exempt) |
| Workweek | Any fixed, recurring 168-hour (7-day) period |
The FLSA does not require daily overtime or double time. If a worker puts in 12 hours on Monday but only works 38 hours that week, federal law requires zero overtime. States like California add daily OT on top of this.
Workweek definition
The workweek is the foundation of OT calculations. Get it wrong and every OT number is wrong.
| Rule | Details |
|---|---|
| Length | Fixed 168-hour (7 consecutive 24-hour) period |
| Start day | Employer's choice (e.g., Monday 12:01 AM through Sunday midnight) |
| Changing the workweek | Cannot be changed to avoid OT — the DOL/DLSE will scrutinize this |
| Multiple workweeks | Different crews or departments can have different start days |
| Averaging | You cannot average hours across 2+ weeks to avoid OT |
What counts as "hours worked"
| Activity | Counts toward OT? |
|---|---|
| Time on the jobsite performing work | Yes |
| Required travel between jobsites during the day | Yes |
| Normal commute (home to jobsite) | No (generally) |
| Required training or safety meetings | Yes |
| Waiting time (if required to stay on site) | Yes |
| On-call time (if freedom is restricted) | Yes |
| Meal breaks (completely relieved of duties) | No |
| Donning/doffing PPE (if required by employer) | Often yes |
Exempt vs. non-exempt
Most construction workers are non-exempt — they're entitled to overtime. Exemption requires meeting both a salary threshold and a duties test.
| Role | Likely exempt? | Why |
|---|---|---|
| Project Manager | Yes — if salaried + duties test met | Executive/administrative exemption |
| Superintendent | Maybe — depends on duties | Must genuinely manage, not just supervise |
| Estimator | Maybe — depends on duties | Administrative exemption if independent judgment |
| Foreman | Usually no | Working foremen performing manual labor are non-exempt |
| Office staff (salaried) | Maybe | Must meet salary + duties test |
| Field workers (hourly) | No | Non-exempt — overtime required |
Calling someone "salaried" or giving them a "manager" title doesn't make them exempt. The DOL uses a duties test — the employee must actually perform exempt-level duties as their primary function. Misclassifying non-exempt workers as exempt is one of the most common wage violations.
Multiple rates in one week (weighted average)
When a worker works at different pay rates during the same week (different projects, different classifications), the FLSA requires a weighted average to determine the OT rate.
Calculation:
- Total straight-time earnings: $40/hr x 30 hrs + $50/hr x 20 hrs = $2,200
- Weighted average rate: $2,200 / 50 hours = $44.00/hr
- OT premium for hours over 40: $44.00 x 0.5 x 10 OT hours = $220.00
- Total pay: $2,200 + $220 = $2,420.00
The OT premium is half the weighted average rate (the worker already received straight time for all hours; the premium is the additional 0.5x).
How federal OT interacts with other rules
The FLSA is the floor, not the ceiling. State laws, union CBAs, and prevailing wage rules can all add requirements on top.
| Rule source | Adds daily OT? | Adds DT? | Changes weekly threshold? |
|---|---|---|---|
| California | Yes (after 8 hrs) | Yes (after 12 hrs) | No (still 40 hrs) |
| Nevada | Yes (after 8 hrs, conditional) | No | No |
| Alaska | Yes (after 8 hrs) | No | No |
| Colorado | Yes (after 12 hrs) | No | No |
| Union CBA | Often yes (after 8 hrs) | Often yes (varies) | No |
| Davis-Bacon (CWHSSA) | No | No | No (still 40 hrs) |
When rules overlap, pay the rate most favorable to the worker for each hour.
Prevailing wage OT (CWHSSA)
On federal prevailing wage projects, the Contract Work Hours and Safety Standards Act (CWHSSA) governs overtime:
| Component | ST rate | OT rate (over 40 hrs/week) |
|---|---|---|
| Basic wage | 1.0x | 1.5x |
| Fringes | 1.0x | 1.0x (no OT premium on fringes) |
The OT premium applies to the basic rate only. Fringes are paid at the straight-time rate for all hours, including overtime.
Violation penalty: $10/day per worker for each day of CWHSSA violation.
Common federal OT mistakes
| Mistake | Correct approach |
|---|---|
| Averaging hours over 2 weeks | Each workweek stands alone — no averaging |
| Not paying OT to "salaried" field workers | Salary alone doesn't create exemption — duties test required |
| Using wrong workweek | Must be fixed and recurring; can't change to avoid OT |
| Ignoring travel time between sites | Travel between sites during the workday counts as hours worked |
| Not using weighted average for multi-rate weeks | Required when a worker has different rates in the same week |
Related resources
- California Overtime Rules — Daily OT, 7th day, breaks, AWS
- State Overtime Map — All 50 states compared
- Overtime Rules for Construction — Full reference (all jurisdictions)
- Prevailing Wage Rate Management — PW fringe OT rules
- Overtime Calculator — Interactive OT computation