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Section 207(a)(1) of the Fair Labor Standards Act (“FLSA”) provides that “no employer shall employ any of his employees…for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.”  Some employers read this section broadly and take the position that they are only obligated to pay overtime if an employee works over 80 hours during a bi-weekly pay period.  In other words, they posit that overtime only kicks in if an employee averages more than 40 hours during a given two-week pay period.

Employers should avoid this approach, and employees should know their rights.  Indeed, to resolve any ambiguity with Section 207, the Code of Federal Regulations makes clear that hours for overtime purposes cannot be averaged over two or more weeks, but instead each workweek stands alone:

The [Fair Labor Standards] Act takes a single workweek as its standard and does not permit averaging of hours over 2 or more weeks.  Thus, if an employee works 30 hours one week and 50 hours the next, he must receive overtime compensation for the overtime hours worked beyond the applicable maximum in the second week, even though the average number of hours worked in the 2 weeks is 40.  This is true regardless of whether the employee works on a standard or swing-shift schedule and regardless of whether he is paid on a daily, weekly, biweekly, monthly or other basis.  The rule is also applicable to pieceworkers and employees paid on a commission basis.  It is therefore necessary to determine the hours worked and the compensation earned by pieceworkers and commission employees on a weekly basis.

29 C.F.R. § 778.104