Gregory A. Hall

Federal and state laws require most employers to pay overtime to an employee who works more than 40 hours per week.  The overtime premium is 50% of the employee’s usual hourly wage. This means an employee who works overtime must be paid “time and a half” for every overtime hour worked.  These laws contain many exceptions, so not all employees are entitled to overtime and not all employers are required to pay overtime.  Employees who are eligible for overtime are called “non-exempt” employees, and those who are not eligible for overtime are called “exempt” employees, because they are exempt from the wage law.
Colorado and federal laws impose a weekly overtime standard, which means that non-exempt employees are entitled to overtime for every hour more than 40 that they work in a week, regardless of how many hours they work in a day.  Under Colorado law, however, employees are entitled to overtime pay for any work in excess of: (1) forty hours per workweek; (2) twelve hours per workday, or (3) twelve consecutive hours without regard to the starting and ending time of the workday (excluding duty free meal periods), whichever calculation results in the greater payment of wages.
Employers Who Must Pay Overtime
Although most employers must pay overtime, not all do. To figure out whether your employer has to pay overtime, first determine whether the employer is covered by the federal Fair Labor Standards Act (FLSA), the federal wage and hour law that sets out the overtime rules. Generally, the employer is covered by the FLSA if it has $500,000 or more in annual sales. Even if the business is smaller, however, it must pay overtime if the employees work in “interstate commerce”. This term is broadly defined and includes businesses that make phone calls to or from another state, sending mail out of state, or handling goods that have come from, or will go to, another state.  Even if your employer is so small or local that it isn’t covered by the FLSA, the employer be covered by Colorado’s wage laws.
Am I Entitled to Overtime ?
If your employer is covered by either the Fair Labor Standards Act (FLSA) or Colorado’s overtime law, then all non-exempt workers are entitled to overtime.  See C.R.S. §8-4-101 and Colorado Minimum Wage Order Number 26 (Section 22).  The following workers are “exempt” from the federal overtime law, are therefore not entitled to overtime:

  • executive, administrative, and professional employees who are paid on a salary basis
  • independent contractors
  • volunteer workers
  • outside salespeople (employees who customarily and regularly work away from the employer’s business, selling or taking orders to sell goods and services)
  • certain computer specialists (such as systems analysts, programmers, and software engineers) who earn at least $27.63 per hour
  • employees of seasonal amusement or recreational businesses, such as ski resorts or county fairs
  • employees of organized camps or religious or nonprofit educational conference centers that operate for fewer than seven months a year
  • employees of certain small newspapers
  • newspaper deliverers
  • workers engaged in fishing operations
  • seamen
  • employees who work on small farms
  • certain switchboard operators
  • criminal investigators, and
  • casual domestic baby sitters and people who provide companionship to those who are unable to care for themselves (this exception does not apply to those who provide nursing care or to personal and home care aides who perform a variety of domestic services).

Exempt  Administrative, Executive, and Professional Employees
Probably the most common, and confounding exceptions to the overtime laws include “white collar” workers: “administrative, executive, or professional” employees need not be paid overtime.   To be considered exempt, administrative, executive, or professional employees must be paid on a salary basis and must spend most of their time performing job duties that require the use of discretion and independent judgment.
Salary Basis – Exempt Criteria
An employee who is paid on a salary basis must earn at least $455 per week, and must receive the same salary every week, regardless of how many hours the employee works or the quantity or quality of the work the employee does.  There are a few circumstances in which an employer may pay a salaried worker less than his or her full salary for a week, if the employee takes a couple of days of paid sick or vacation leave, or takes time off under the Family and Medical Leave Act. Generally, however, if an employer docks an employee’s pay (for taking a personal day or not meeting a sales target, for example), then the employee is not paid on a salary basis and may be entitled to overtime.
Job Duties – Exempt Criteria
Not every employee who earns $455 or more per week is exempt from overtime. The employee must also be performing certain types of work.  Some examples include, work that requires an advanced degree, is managerial or supervisory in nature, or requires the employee to make independent judgments regarding relatively high-level business decisions.  Here are the basic requirements for the administrative, executive, and professional exemptions.

  • An administrative employee must perform office or other non-manual work that is directly related to the management or business operations of the employer or its customers, and must exercise discretion and independent judgment regarding significant issues.
  • An executive employee’s primary duty must be managing the employer’s enterprise or a recognized division or department of that enterprise; the employee must regularly supervise at least two full-time employees (or the equivalent), and must have the authority to hire and fire or have significant input into hiring and firing decisions.
  • A professional employee’s primary duty must either be performing work that requires advanced knowledge in the field of science or learning, of a type that is usually attained through an advanced course of study; or performing work that requires invention, imagination, originality, or talent in a recognized creative or artistic field.

If you’re being denied overtime contact Denver Employment Lawyer Gregory A. Hall at 303-320-0584. http:/

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