Overtime

Produced by Lydia Edwards, Director of Legal Services Brazilian Immigrant Center, Massachusetts Law Reform Institute, Neighborhood Legal Services
Last Updated June 2015

If you get paid by the hour or you get a salary, you probably have a right to overtime. Some jobs do not pay overtime.

If your job is covered by overtime laws, you have a right to overtime pay any time you work more than 40 hours in one week. Overtime is one and one half times your regular hourly rate.

Commissions and bonuses based on sales performance do not usually count toward your regular hourly rate.1

Can I get overtime?

Some workers are not covered by overtime law.

State and federal laws about overtime are different.  

If your job is covered by Massachusetts overtime laws and you have a question or complaint, call the MA Attorney General’s Fair Labor Hotline, (617) 727-3465.

If your job is covered by federal law and you have a question or complaint, call the Wage Hour Division of the Department of Labor at 1-866-487-9243.

Massachusetts overtime law does not protect:2

Massachusetts overtime law protects:

  • Agricultural workers,
  • Employees of non-profit schools and summer camps,
  • Fishermen,
  • Interstate truck drivers and helpers covered by federal laws,
  • Janitors and maintenance people in residential buildings who get paid at least $30 a week and free rent for their services,
  • Outside salespeople,
  • Professionals and executives (including administrative professionals and some computer employees),
  • Seasonal workers (if you work for a  business that operates less than 120 days a year),
  • Restaurant, hotel, hospital, nursing home, garage and gas station workers,
  • Volunteers for charitable, educational or religious non-profit institutions, and
  • Independent contractors.
 
Any job that is not in the column to the left, including domestic workers and service workers.

Federal law on overtime does not protect:

Federal law on overtime protects:

  • Live- in domestic workers
  • Seasonal workers
  • workers at hotels,
  • hospitals,
  • nursing homes,
  • restaurants,
  • gas stations,
  • garages,
  • nonprofit schools, and
  • janitors 

How do you calculate overtime?

Overtime for most workers is 1½ times your regular pay.

If you are a service worker, your employer must pay you at least $15 an hour, if you work overtime. This is 1½ times the minimum wage of $10/hr.3 See Minimum wage for service workers.

Example 1: Coretta is an electrician.

Coretta gets $20 an hour.

One week she works 47 hours.

For 40 of those hours, she gets her regular rate of $20 an hour.

She worked 7 hours of overtime.

Her overtime is 1 ½ times her regular pay.

For the 7 hours of overtime she worked, she will get $210 in overtime.

Overtime rate =

1 ½  times Coretta’s regular rate of $20 an hour =

1.5 x 20 =

$30 an hour

Overtime pay =

7 hours at the overtime rate of $30 an hour =

7 x 30 =

$210

When can I get overtime?

You have a right to overtime any time you work more than 40 hours in a week. The first 40 hours of a week, you get paid your regular hourly rate. Any hours over 40 that you work, you get paid the overtime rate.

Overtime is based on your regular hourly rate. Any commissions or bonuses that you might get for sales performance do not count towards your regular hourly rate.4

What if I work more than 8 hours in one day?

If you work more than 8 hours in one day, you do not have a right to overtime pay. You must work more than 40 hours in one week to earn overtime pay.

What if I work more than 40 hours in a week but at different jobs?

You only get overtime if you work more than 40 hours for the same employer.

What if I get paid every two weeks and I work 60 hours one week and 20 hours the following week?

It does not matter if you get paid every two weeks. If you work more than 40 hours in one week, you must get paid the overtime rate for that week.

For example, if you work 60 hours the first week, you would earn 20 hours of overtime pay (60 – 40 = 20) for that week.

Week 1

60 hours

- full work week

40 hours

= Overtime

20 hours

If you only work 20 hours the next week, you will not earn overtime pay for that week.

Can I get overtime for time when I am on call?

You can get overtime hours while you are on call if you have to stay at work or you cannot use your time freely. If you can use the “on call” time for your own purposes, it is not work time. You cannot get overtime until you are called into work.5

I work on Saturdays as part of my regular work schedule. Do I have a right to overtime for Saturday?

Saturdays

If the Saturday is part of your regular 40 hour work schedule, you will not get overtime. You must work more than 40 hours in a week to get overtime. A week is a "work week". Your employer decides when your work week begins. It can begin on any day of the week and it lasts seven days. If you work more than 40 hours in your work week, you have a right to overtime. It does not matter if your work week starts on Saturday or Wednesday.

Sundays

Most workers in retail get paid a premium rate on Sundays. The premium rate is 1.5 times your regular pay. You can not get overtime and the premium rate on Sunday. You only get one or the other. Either way, you get paid 1.5 times your regular pay on Sunday. Contact the Fair Labor hotline to find out if you should get the premium rate on Sundays.

What should I get paid for working on a holiday?

If you work on a holiday, it is the same as working on a Sunday.

My boss told me she does not pay overtime. Is that legal?

If the kind of work you do is covered by overtime law, your employer must pay you overtime. If she does not, she is breaking the law. See Can I get overtime? Your employer cannot make you agree to give up your right to overtime. It is against the law to make you sign away your right to overtime.

Employers do not have to pay overtime to every worker. See the jobs that are not covered in Can I get overtime? Almost everyone else can get overtime. If your employer does not pay overtime, he or she must prove that you are not covered by federal or state overtime laws.

Also, your employer must keep records of the overtime hours you work. If your employer is wrong, you can use the records to show the overtime hours you worked. If your employer did not keep good records, you can testify about the hours of overtime you worked.

My boss told me I could get “comp time” instead of overtime pay for the extra hours I work. Is that legal?

“Comp Time” means “compensation” for your overtime. Your employer gives you time off instead of paying you for the overtime hours you worked.

If you cannot get overtime, your employer can offer you “comp time”. See Can I get overtime?

If you can get overtime, the laws are different for people who work for the government and people who do not work for the government.

If you do not work for the government, it is illegal for your employer to give you “comp time” instead of paying you overtime.

If you work for the government, your employer can offer you “comp time”. But

  1. your comp time must be 1.5 times the number of hours of overtime hours you worked, and
  2. You must agree to the arrangement.

What if my employer will not pay me my overtime?

If you have a right to overtime and your employer does not pay you, file a wage complaint with the Office of the Attorney General. The Attorney General can give your employer a citation. The citation will tell your employer to pay you for your overtime hours. The Attorney General can take your employer to court, fine him, take away his license, and make him pay for damages.

If the federal overtime law protects you, you can take your employer to court yourself.6 If you decide you want to take any other overtime case to court, the Attorney General will usually let you do it on your own.7 This is requesting “a private right of action”.

In court, you have a right to:

  • the overtime you were denied,
  • “treble damages” = 3 times the amount of actual damages8, and
  • reasonable attorneys’ fees and costs.

If you take your employer to court for breaking federal overtime law, you may be able to get your overtime and damages equal to the overtime you worked.9

What if my employer tries to get back at me for filing a complaint because I did not get my overtime pay?

It is against the law for your employer to fire you or get back at you because you filed a complaint. This is “retaliation.” It is against the law for your employer to retaliate because you talked or wrote about a problem with your overtime pay.

If your employer does try to get back at you, the Attorney General can give him a civil citation. The citation might say that your employer has to pay you a month’s wage and the costs of any lawsuit. Contact the Office of the Attorney General.

Endnotes

1 G.L. c. 151, § 1A.

2 G.L. c. 151, § 1A.

3 454 CMR § 27.03(2). Service workers like taxicab drivers and hairdressers can sometimes be paid $3.35 an hour, the service rate.
Your employer can only pay you the service rate if your hourly wage, at least $3.35/hr, added to your average hourly tips and service charges, is at least $10/hour. If your wage plus tips does not add up to $10/hr your employer must raise your service rate so that you get at least $10/hr in wage plus tips, or pay the full minimum wage of $10 an hour. 454 CMR § 27.03(2).

4 G.L. c. 151, § 1A.

5 455 CMR § 2.03(2). You can get overtime for meal time as well, unless you are given 30 minutes of uninterrupted time free of duties. G.L. c. 149, § 100. See 455 CMR § 2.03 generally for hours worked including travel time.

6 If you are bringing an action under federal law (the Fair Labor Standards Act - FLSA, 29 U.S.C. §§ 201, et seq.), or under G.L. c. 151, s. 1B, you do not have to first file a complaint with the Department of Labor or the Attorney General.

7 If you are bringing a complaint under G.L. c. 149, you have to first go through the Massachusetts Attorney General’s Office. G.L. c. 149, § 27. See a Sample Request for a Private Right of Action (PDF) for use after filing a complaint with the Attorney General’s Office. See the MA Attorney General's page Private Right of Action.

8 You can get treble damages if you are bringing a case through state overtime law. G.L. c. 149, § 27.

9 29 U.S.C. §§ 216(b). You can get this extra amount in damages in addition to the overtime that is owed. These extra damages are called “liquidated damages”. To avoid these extra damages, your employer must show that there were “reasonable grounds” to believe that she or he was not breaking the law. If you do not end up getting these “liquidated” damages, you have a right to the interest on the overtime that is owed. 29 U.S.C. §§ 260.

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