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A. Hours Worked - General


The U.S. Department of Labor's regulations for determining what must be counted as hours worked are found in Part 785 of the wage and hour regulations, Title 29 of the Code of Federal Regulations. For the majority of non-exempt employees, overtime will be an issue if the hours worked exceed 40 in a seven-day workweek. In general, an employer must pay employees for all hours in which they are "suffered or permitted to work". Only hours actually worked in excess of 40 in a seven-day workweek are counted toward overtime pay; paid leave hours and paid holiday hours do not count toward overtime pay. Extra hours worked on a day in a workweek do not result in overtime liability unless they result in the total hours for the workweek going over 40 (one notable exception is for non-exempt employees of residential care facilities such as hospitals and nursing homes: a 14-day period may be used if the employer pays overtime for hours in excess of eight in one day or 80 in a two-week period - this is sometimes called the "8/80 rule".) The DOL's official definition of "workweek" in 29 C.F.R. 778.105 provides that it "is a fixed and regularly recurring period of 168 hours -- seven consecutive 24-hour periods" that can "begin on any day and at any hour of the day." Partial workweeks at the end of a semi-monthly pay period do not count toward overtime for previous workweeks - each workweek stands alone, as noted in 29 C.F.R. 778.104. Any overtime pay from that workweek would be paid with the pay for the following pay period (see 29 C.F.R. 778.106). Hours tracked with timekeeping devices for employees working normal schedules generally present no problem. The troubles arise primarily in situations involving work outside normal schedules, outside the office, or outside of the usual job duties. This article highlights those specific problem areas.


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