Counting FLSA Hours Worked: How to Get it Right to Satisfy Upcoming Overtime Rules and Calculation

Wage and hour violations are a frequent source of trouble for employers, where Fair Labor Standards Act (FLSA) oversights can but businesses and HR professionals in the legal hot seat.

Especially now, as employers prepare for the new overtime rule (effective January 1, 2020), upholding FLSA requirements is more important than ever. The new overtime rule raises the earnings thresholds necessary for certain exemptions, including an increase of the “standard salary level” from $455 a week to $684/week. Also, the annual compensation requirement for highly compensated individuals will increase from $100,000 per year to $107,432/year.

Here are two simple guidelines to help ensure you stay on the right side of FLSA requirements for regular and overtime pay:

1. Pay for all hours worked, even those outside of normal working hours

   The FLSA requires employers to pay at least the minimum wage for all hours worked, with time and half for any hours non-exempt employees work over 40 in a workweek.

   For this reason, expecting an assistant to take work home at night to meet a deadline (but not paying him for the time) is unacceptable. Overtime must be recorded and paid even it unauthorized. You should communicate clearly with employees about work expectations, scheduling and overtime approvals. Ultimately, it is the supervisor’s duty to control overtime costs and to address unauthorized overtime as a disciplinary issue, if necessary.

   The widespread use of technology and electronic devices, such as smartphones and online email access, comes into play with off- the- clockwork, too. Can you expect non-exempt employees to respond to voice mails or emails before or after their regularly scheduled shifts? Not according to the FLSA. If you’re going to allow these employees to perform work remotely or remain “connected” outside their scheduled work hours, you need to ensure they’re recording their time.

   Always remember: Employers are responsible for paying non-exempt employees for the time they put in on the job, whether the work is done at the office, during a commute or in the employee’s home.



The number of wage and hour lawsuits filed against U.S. employers continues to rise, making it one of the biggest areas of employment litigation today.

2. Make sure employees are taking full, uninterrupted breaks before deducting pay

   You also need to be aware of potential problems with automatic deductions, where your company’s timekeeping system automatically deducts for 30-minute meal breaks. More common in the retail and health care industries, these deductions are lawful under the FLSA, but only when employees are allowed to take the full, unpaid break. When workers miss a break – or a break is cut short to answer a business call or address a work issue – they could make a case for unpaid wages if your business processes automatic deductions without any oversight.

   To avoid this risk, be certain employees are completely relieved of all duties during 30-minute meal breaks so they can take them uninterrupted. You should also have a procedure in place to override automatic deductions for any situations where non-exempt employees skip breaks or receive less than their full time.

Other DOL Rules to Consider

You already know about the new FLSA overtime rule that raises the earnings thresholds necessary for certain exemptions, but there are other FLSA developments that need to be kept in mind. For example, a final rule was recently published regarding the regular rate under the FLSA. Specifically, the rule clarifies which perks and benefits must be calculated as part of an employee’s regular rate of pay (and which ones can be given without being included in the regular rate). Another update to be aware of is a proposed rule regarding the fluctuating workweek calculation method. Because the proposed rule was not finalized at the time of publication, we’ll keep you informed of any movement with this and any other FLSA changes.

Keep Current with Developing FLSA Time and Pay Rules

While the FLSA can be complicated, it comes down to making sure employees are paid for all hours worked. This is especially critical when calculating overtime, which can lead to FLSA violations if you get it wrong. For more guidance on the new FLSA overtime rule, check out the free download, FAQs About the New FLSA Overtime Rule.