Unpaid Overtime is Not Cool (and What You Can Do About It)

There’s a lot of things I hate (rude people, traffic jams, being called “buddy” in conversation), but not getting paid for the work I’ve done takes the top slot.  This isn’t because I’ve been stiffed on a paycheck, but because I’ve had jobs where I had to face off against my arch nemesis unpaid overtime.

Check out this graph from the Economic Policy Institute showing the number of salaried workers in the US who are guaranteed pay for the overtime hours they’ve worked.  (And just so we’re all on the same page, this graph only refers to certain kinds of salaried workers, since hourly workers are automatically eligible for overtime pay.)



Basically, this means that in 1975 there were 12.6 million salaried workers eligible for overtime pay if they worked more than 40 hours a week, but as of 2016, only 3.5 million salaried workers were eligible for overtime, even though the workforce is 50% larger than it was back then.  Yikes!


The Fair Labor Standards Act (FLSA) In Plain English

Back in 1938, Congress enacted the Fair Labor Standards Act (FLSA), which set the 40-hour workweek, gave us the two-day weekend, and made other rules to protect workers from working long hours, especially if you were a kid.  The rules were pretty simple: whether you were salaried or hourly, if you worked more than 40 hours a week, you had to get paid time-and-a-half for every hour worked over 40.

There were exceptions, though.  Certain kinds of workers weren’t required to get time-and-a-half pay for overtime: people like lawyers, professors, architects, factory supervisors, and people who ran businesses.  This was because their jobs were highly paid, in high demand, required a lot of skills, allowed for certain flexibility in their work schedules, required more independence, and didn’t involve back-breaking physical labor.

The salary numbers have changed for inflation since 1938, but the rules for who has to get overtime and who doesn’t are pretty much the same.  As of 2017, if a worker isn’t going to make overtime, all three of these things must be true:


1. You have to make at least $23,600 a year

This is simple: if you make less than $23,600 a year (about $11.30 an hour for a full-time worker), you have to be paid overtime.  Congress last raised this number in 2004, when it was a shockingly low $8,060 per year.  (That’s why the above graph went up a lot in 2004!)


2. You have to be paid a salary

This one’s simple too: your $23,600+ per year has to come in salary form.  Workers who get paid hourly and fill out a timesheet are automatically eligible for overtime, unless they somehow make more than $100,000 a year.


3. You have to be an Executive, a Professional in a “Learned Profession,” or an Administrator

This one’s the hardest to understand.  The FLSA sets rules for certain kinds of workers who can go without overtime: these people are (1) Bosses who supervise at least two other employees, (2) “Learned professionals” who have some creative or academic skill (like a lawyer, architect, or writer), or (3) Administrators who actually make crucial decisions about a business.

The administrator part can be pretty hard to define, especially for office workers who process a lot of paperwork but don’t directly make decisions about the business.  The rule of thumb is that secretaries (even if they have fancy job titles), bookkeepers, and a lot of other office-type jobs don’t pass the administrator test and have to make overtime pay—but each job is different, and you have to look carefully to know for sure.


How Do I Know If I’m Exempt From Overtime Pay?

Since every job is different, you have to match the work you actually do at your job with the rules set in the FLSA for who has to be paid overtime.  This site explains the rules pretty well in simpler English, or you can look through the official Department of Labor Overtime Guide here (Warning: it’s really long!).

This can be hard stuff to sort out, but it’s worth delving into if you aren’t sure where your job lies.  If you’re a salaried worker who doesn’t have the job responsibilities or skills on the Executive, Professional, or Administrator lists and aren’t being paid overtime pay, it might be time to talk to your boss, or maybe even file a complaint, which you can find out how to do here.


Why Are Overtime Laws Important?

As Ross Eisenbrey talks about in the same article I took the overtime graph from, labor laws exist so people can maintain a healthy work-life balance and so their work doesn’t overwhelm them.  People need time to be with their families, buy food from the grocery store, have social lives to make them happy, and just get some regular ol’ time to themselves.  They need to be happy and enjoy life to an extent that society deems reasonable, since the negative effects of overwork can be pretty nasty.  Creative people with Day Jobs also need time to do their creative work, and spending too much time at your Day Job makes doing that creative work a lot more difficult.

Overtime laws protect people using a simple principle: if you work, you should get paid for it, and if you work a lot in a short amount of time, you should be paid even more for the stress and trouble you went through.  Requiring companies to pay overtime means they’ll be less likely to give workers more responsibilities than they can reasonably handle in a week, since too much to do means workers have to stay in the office for more than 40 hours. If reasonable overtime overtime rules are in effect, this’ll costing the company more in the long run.  The rules gives companies an economic incentive not to take advantage of their employees, because if companies aren’t paying their workers overtime, there’s nothing to stop them from giving out more and more work forever, making longer workweeks and worse working conditions for everyone.

If companies don’t have a moral obligation to their workers or an economic incentive to stop them from giving out overtime work, their only real limit is how far they can physically and mentally push their workers before they quit, rebel, get sick, or die.  This last one is such a phenomenon in Japan that they even gave it a name: karōshi, or death by overwork.

Alternately, if a company has a lot of work that just plain needs to be done and has to pay their workers overtime, workers can profit from this extra work, giving them more money to spend on things that’ll make them happy, or on savings they can put towards building a better life.  If you’re like me, you can also stash that money for a time when you’ll want to work fewer Day Job hours to focus on a creative project, which means more freedom in the future.

If your job is your passion, then all this becomes a lot less important—in fact, the overtime exemption for creative professionals specifically allows flexibility for people who are lucky enough to get paid for doing what they really want to do, since these people are more likely to feel fulfilled at their jobs and put more of their own energy into their projects.  For the rest of us, though, we need money to pay the bills and make better lives, as well as time to get our shit done and enjoy life.  Overtime laws give us more of one or the other—take your pick.


What About Obama’s Law Expanding the Number of Eligible Overtime Workers?

To put it bluntly, it ain’t looking good.  Back in 2016, the Department of Labor under the Obama Administration was all set to raise the overtime salary threshold from $23,600 a year ($11.30 an hour) so that anyone making under $47,476 (about $22.80 an hour) could get overtime pay.  Shortly before the law would take effect, though, a federal judge in Texas blocked it, and with the new administration in place, that salary number’s probably going to stay right at $23,600, thus allowing more workers to be taken advantage of.

This is bad news for workers, especially those doing administrative-type duties who aren’t being paid white-collar salaries for them.  Had the law taken effect, employers would have had to either (1) Give these workers pay raises, (2) Cap them at 40 hours per week, or (3) Pay them overtime.  Companies would have had plenty of options for complying with the law in a way that worked best for their particular business, and workers would have benefited from either more money or more free time.

As a bonus, if the work still wasn’t getting done, companies would have had it in their best interests to hire more people to do it in a set forty-hour workweek, since paying two people overtime to work 60 hours a week is more expensive than hiring three people to each work 40 hours a week.  This means more, better jobs, which helps everyone.

All’s not lost, though: since the Texas judge’s ruling came so close to December (when the law would have taken effect), a lot of companies had already raised their workers’ salaries to comply with the law, and they’re hardly in a position to just take all those raises back.  That’s partially good news.


The Bottom Line

If you’re working unpaid overtime at your job and not being paid decent money to do it, it might be time to take action.  If you’re legitimately sure you should be getting overtime because you don’t meet the Executive/Administrator Rule, consider talking to your boss, or filing an official complaint if things look really bad.

Or, if your job falls through the cracks of the FLSA and you find yourself working a lot of hours for no money, consider putting your foot down by leaving work on time, saying no to extra work, or (again) talking to your boss.  If too much work is seriously interfering with your creative work or your work-life balance, it might also be time to switch jobs for one that doesn’t take away so much of your time.

Remember this: A Day Job should never control you.  You should always control your Day Job.

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