Overtime
STATE OF WASHINGTON
DEPARTMENT OF LABOR AND INDUSTRIES
EMPLOYMENT STANDARDS
TITLE: OVERTIME NUMBER: ES.A.8.1
REPLACES: ES-013
CHAPTER: RCW 49.46.130 ISSUED: 1/2/2002
WAC 296-126 and WAC 296-128 REVISED: 11/6/2006
REVISED: 7/15/2014
REVISED: 12/7/2021
REVISED: 4/6/2023
SEE ALSO: ES.A.1,
ES.A.8.2, ES.A.9.3 - 9
ES.A.10.1, ES.A.10.2,
ES.A.10.3, and ES.D.1
ADMINISTRATIVE POLICY DISCLAIMER
This policy is designed to provide general information in regard to the current opinions of the Department of Labor & Industries on
the subject matter covered. This policy is intended as a guide in the interpretation and application of the relevant statutes,
regulations, and policies, and may not be applicable to all situations. This policy does not replace applicable RCW or WAC
standards. If additional clarification is required, the Program Manager for Employment Standards should be consulted.
This document is effective as of the date of print and supersedes all previous interpretations and guidelines. Changes may occur
after the date of print due to subsequent legislation, administrative rule, or judicial proceedings. The user is encouraged to notify the
Program Manager to provide or receive updated information. This document will remain in effect until rescinded, modified, or
withdrawn by the Director or his or her designee.
This policy provides guidance on Washington's Minimum Wage Act (MWA) overtime
requirements. The guidance includes descriptions of which employees are owed overtime and
when. This guidance also includes descriptions of those exempt from overtime.
- Most Employees are Entitled to Overtime Compensation for Hours Worked in Excess
of Forty Per Week.
Unless an employee is exempt from the Minimum Wage Act, or from the overtime requirements
(see section 9 below), the employee must be compensated at an overtime rate of at least at one
and one-half times their regular rate of pay for all hours in excess of forty in a seven-day
workweek. See RCW 49.46.010 and RCW 49.46.130(1). Overtime pay is required regardless of
whether the employee is paid hourly or in some other manner (such as by commission,
piecework, salary, non-discretionary bonus, an alternative pay structure combined with an
hourly rate, or any combination). Overtime pay is also required regardless of whether payment
is made on a daily, weekly, bi-weekly, semi-monthly, monthly or other basis.
There is no limitation on the number of hours an employee may work in a workweek. Employers
in most industries can require mandatory overtime but must compensate the employee
accordingly. Overtime compensation is due when an employee works more than 40 hours in a
workweek, regardless of whether the hours are worked on a Saturday, Sunday, or holiday.
The overtime requirement may not be waived by agreement between an employee and
employer regardless of whether it is included in a collective bargaining agreement or individual
employee agreement. See RCW 49.46.090. A declaration by an employer that no overtime work
will be permitted, or that overtime work will not be paid unless authorized in advance, is not a
defense to an employee's right to compensation for any overtime hours actually worked.
- If an employee must be paid overtime, how is the amount due calculated?
If an employee is due overtime compensation for hours over 40 in a workweek, it must be paid
at a rate "not less than one and one-half times the regular rate at which they are employed."
See RCW 49.46.130(1).
2.1 Employees Paid a Single Hourly Rate. Employees who are paid a single, hourly
rate must be paid at least one and one-half their regular hourly rate of pay for each hour
worked in excess of 40 in a seven-day workweek.
2.2 Employees Paid Other than at a Single Hourly Rate. For example, non-exempt
salaried employees, piece rate, commission, non-discretionary bonus, and combinations
of the above, including one or more of the above combined with an hourly rate, are also
entitled to overtime pay at a rate of at least one and one-half the "regular rate" at which
they are employed. See RCW 49.46.130(1), WAC 296-128-550, and ES.A.8.2, "How to
Compute Overtime."
- How is "regular rate" determined?
Prior to calculating overtime pay, it is necessary to determine the employee's regular rate of
pay. The regular rate may exceed the minimum wage pursuant to RCW 49.46.020, but may not
be less. Regular rate of pay is determined by dividing the total weekly compensation received
by the total number of hours the employee worked during the workweek, including the hours
over forty. See WAC 296-128-550 and ES.A.8.2, "How to Compute Overtime."
- Payments Included When Determining Regular Rate.
Certain payments other than hourly, commission, piece rate, or salary nonexempt payments
must be included in the regular rate. Those payments include:
4.1 Bonuses. Non-discretionary bonuses must be totaled in with other earnings to
determine the regular rate on which overtime must be paid.
4.2 Non-Overtime Premium. Lump-sum payments that are paid without regard to the
number of hours worked are not overtime premiums and must be included in the regular
rate.
4.3 "On Call" Pay. If an employee is in on-call status, but is not confined to their home
or to any other particular location, the time spent on call is not considered "hours
worked." However, any payment for such on-call time must be included in calculating the
employee's regular rate of pay because it is a payment for performing a duty connected
with the job even if it is not attributable to any specific hours of work.
- Certain Payments May be Excluded When Determining Regular Rate.
The regular rate includes total compensation earned in the pay period, excluding certain
payments. The following payments are not included when determining regular rate, provided all
the conditions related to each payment are met:
5.1 Overtime Pay for Hours in Excess of a Daily or Weekly Standard. Extra
compensation provided by a premium rate of at least one and one-half times the usual
hourly rate, which is paid for certain hours worked by the employee in any day or
workweek because the hours are hours worked in excess of eight in a day or in excess
of 40 in a workweek. Such extra compensation may be credited toward statutory
overtime payments.
5.2 Premium Pay for Work on Saturdays, Sundays and Other Special Days. Extra
compensation provided by a premium rate of at least one and one-half times which is
paid for work on Saturdays, Sundays, holidays or regular days of rest, or on the sixth or
seventh day of the workweek as such, may be treated as overtime pay. However, if the
premium rate is less than one and one-half times, the extra compensation paid must be
included in determining the regular rate of pay and cannot be credited toward statutory
overtime requirements.
5.3 Discretionary Bonuses. A discretionary bonus or gift or payment in the nature of
gifts given on special occasions need not be included in the regular rate if the employer
retains discretion both that a bonus will be paid and that the amount will not be
determined until the end, or near the end, of the bonus period, i.e., when an employer
pays a bonus without prior contract, promise, or agreement and the decision as to the
fact and amount of payment lay in the employer's sole discretion and the bonus is not
geared to hours worked or production, the bonus would be properly excluded from the
regular rate. If the employer announces a bonus in advance, discretion regarding the
fact of payment has been abandoned and the bonus would not be excluded from the
regular rate.
5.4 Gifts, Holiday and Special Occasion Bonuses. If a bonus paid as a holiday bonus
or on other special occasions as a gift, it may be excluded from the regular rate even if
the employees anticipate receiving it because it is paid with regularity. However, if the
bonus is based on hours worked or production, it is not considered as a gift and must be
included in the regular rate.
5.5 Reimbursement for Expenses. When an employee incurs expenses on the
employer's behalf, or where the employee is required to spend sums solely for the
convenience of the employer, payments to cover such expenses are not included in the
employee's regular rate of pay.
5.6 Payment for Non-working Hours. Payments that are made for periods when the
employee is not at work due to vacation, holiday, paid sick leave usage or similar
situations, may be excluded from the regular rate of pay. Such payments may not be
credited toward statutory overtime requirements.
5.7 Show-up and Call-back Pay. An employment agreement may provide for a stated
number of hours pay if the employee is not provided with the expected amount of work.
If the employee works only part of the hours but is paid for the entire number of hours in
the agreement, the pay for the hours not worked is not regarded as compensation and
may be excluded from the regular rate. Such pay cannot be credited toward overtime
pay due.
5.8 Paid Sick Leave and Other Paid Time Off. If an employee uses paid sick leave
during a workweek, the paid sick leave used during the workweek is not considered
"hours worked" and does not have to be counted towards the 40-hour overtime threshold
or in the overtime wages calculation. An employer must compensate each employee for
paid sick leave used at the employee's normal hourly compensation. See WAC 296-128-
600(10). Other forms of paid time off including vacation pay, holiday pay, or "PTO" are
also not considered hours worked and are not counted towards the 40-hour overtime
threshold. The calculation of regular rate for overtime purposes is based on actual hours
worked, and does not have to include hours for which the employee used paid sick leave
or other paid time off. See ES.A.8.2, "How to Compute Overtime."
5.9 Tips, Gratuities, and Service Charges. Tips, gratuities, and service charges are
paid in addition to the employee's compensation and do not need to be taken into
consideration when calculating an employee's regular rate.
Because the regular rate is determined by actual hours of work performed by an employee,
employers are required to record all actual hours of work regardless of whether an employee is
paid on hourly, salary, piece rate, commission or other basis. See Administrative Policy ES.D.1,
"Recordkeeping and Access to Payroll Records (Non-agricultural Employment)."
- Calculating Regular Rate for Employees Paid on a Non-Salary Basis.
The method used to calculate "regular rate" differs depending on how an employee is
compensated. If the regular rate should fall below the applicable minimum wage, the employee
must be compensated for regular hours at the minimum wage and for overtime based on one
and one-half the minimum wage rate. The following subsections provide guidance on how to
calculate regular rate for employees paid on a non-salary basis:
6.1 Hourly Rate. When an employee is paid solely on the basis of a single hourly rate,
the hourly rate is the "regular rate." For overtime hours, the employee must be paid one
and one-half times the hourly rate for each hour over 40 in the workweek.
6.2 Piece Rate. When an employee is paid on a piece rate basis, the regular rate of pay
is computed by adding together the total earnings for the workweek from piece rate and
all other earnings (such as bonuses), and any sums that may be paid for other hours
worked. This sum is divided by the total number of hours worked in that week to yield the
pieceworker's "regular rate" for that week. For the overtime work, the employee is owed,
in addition to the total straight-time weekly earnings, one-half the regular rate for each
hour over 40 in the workweek. The employee has already received straight-time
compensation for all hours worked and only additional half-time pay is required.
6.3 Day Rates/Job Rates. An employee may be paid a flat sum for a day's work, or for
doing a particular job, without regard to the number of hours worked in the day or at the
job, and receive no other form of compensation. In such a case, the employee's "regular
rate" is found by totaling all the sums received at such day rates or job rates in the work
week and divided by the total hours actually worked. The employee must be paid an
additional one-half pay at this rate for each hour over 40 in the workweek. The employee
has already received straight-time compensation for all hours worked and only the
additional half-time pay is required.
6.4 Employees Working at Two or More Rates. Where an employee in a single
workweek works at two or more different types of work for which different straight-time
rates have been established, the regular rate for that week is the weighted average of
such rates. That is, the earnings from all such rates are added together and this total is
then divided by the total number of hours worked at all jobs. The employee is due the
one-half rate for each overtime hour.
6.5 Commission Payments (Other than Retail Sales or Service Exception).
Commissions are payments for hours worked and must be included in the regular rate,
regardless of whether the commission is the sole source of the employee's
compensation or is paid in addition to a salary or hourly rate. It does not matter whether
the commission earnings are computed daily, weekly, or monthly. When a commission is
paid on a workweek basis, it is added to the employee's other earnings for that
workweek and the total is divided by the number of hours worked in the workweek to
obtain the employee's regular rate for the particular work week. The employee must then
be paid extra compensation at the one-half rate for each overtime hour worked. See
WAC 296-126-021. Note: See ES.A.10.1, ES.A.10.2 and ES.A.10.3 for commissioned
employees in retail sales or service establishments.
- Calculating Regular Rate for Employees Paid on a Salary Basis.
Salary payment arrangements must include a mutually understood agreement between
employer and employee specifying the number of hours per week for which the salary is
intended to cover. In the absence of a clear understanding of the number of hours to be
included in the weekly salary, the department will consider the salary agreement to be based on
40 hours.
To use the analysis in subsection 7.3 and 7.4, related to workweeks exceeding 40 hours and
those with fluctuating hours, in order to apply a rate of one half of the regular rate to
compensate the employee for the overtime hours worked, the following three requirements must
all be met:
A. There is a clear mutual understanding between the employer and the employee
that the salary is straight pay for all hours worked in the week.
B. There is a clear and mutual understanding between the employer and the
employee that overtime will be compensated at one-half times the regular hourly
rate.
C. The overtime is paid contemporaneously with straight-time pay
Contemporaneous means that the overtime pay is received in the same pay
period as the regular pay.
7.1 Salary—Weekly. When an employee is employed solely on a weekly salary basis,
the regular hourly rate of pay is computed by dividing the salary by the number of hours
for which the salary is intended to compensate.
7.2 Salary—Other Than Weekly. When the salary covers a period longer than a
workweek, such as a month, it must be reduced to its equivalent weekly wage by
multiplying by 12 (months), and dividing by 52 (weeks). A semi-monthly salary is
converted to its weekly equivalent by multiplying by 24 and dividing by 52. Overtime
payment for salary paid other than weekly is determined the same as for weekly
payment of salary.
7.3 Salary—Workweek Exceeding 40 hours: A fixed salary for a regular workweek
longer than 40 hours does not discharge the statutory obligation for non-exempt
employees.
EXAMPLE 4.3-1: An employee is hired to work a 44-hour workweek for a weekly salary
of $900. In this case, the regular rate is obtained by dividing the $900 straight-time
salary by 44 hours, which results in a regular rate of pay of $20.45. The employee is due
additional overtime computed by multiplying the four overtime hours by one-half the
regular rate of pay at $10.23 per hour, and the employee is due an additional $40.92
above the $900 salary for each week, for a total of $940.92. Reminder: the half time rate
can only be applied if all three requirements listed above are met. If the employee
worked more than 44 hours, the employee would be due additional pay for the hours
worked over 44 computed by multiplying these additional overtime hours by one and
one-half the regular rate of pay, which equates to $30.68 per hour for each hour worked
in excess of 44 in any workweek.
7.4 Salary—Fluctuating Hours. Salary for a fluctuating workweek occurs when an
employee is employed on a fixed salary and it is clearly understood and agreed upon by
both employer and employee that the hours will fluctuate from week to week and that the
fixed salary constitutes straight-time pay for all hours of work, whether fewer or greater
than forty hours per week. The regular rate is then obtained for each week by dividing
the weekly salary by the number of hours worked each week. Since it was understood
that all hours would constitute straight-time, all hours worked have already been paid at
straight-time compensation; however, the employee is still entitled to receive an
additional one-half hour's pay for each hour over 40 in the work week. Reminder: the
half time rate can only be applied if all three requirements listed above are met.
- What is the definition of "workweek"?
A workweek is a fixed and regularly recurring period of 168 hours during seven consecutive 24-
hour periods. It may begin on any day of the week and any hour of the day. For purposes of
overtime payment, each workweek stands alone; there can be no averaging of two or more
workweeks. Once the beginning time of an employee's workweek is established it remains fixed,
but may be changed if the change is intended to be permanent and is not designed to evade the
overtime requirements. In the absence of a workweek established by the employer, the
workweek automatically defaults to the calendar week, Sunday through Saturday.
- Who is exempt from overtime?
The Minimum Wage Act (MWA) specifically exempts certain employees from the statute's
overtime requirements in RCW 49.46.130(2)(a)-(j). The MWA includes the following exemptions
from overtime law, RCW 49.46.130(2):
9.1 Employees exempted from the Minimum Wage Act (MWA). The entitlement to
overtime comes from RCW 49.46.130, which is part of the MWA. Anyone exempt from
the definition of employee under the Minimum Wage Act is not protected by the MWA
and likewise paid overtime wages. See ES.A.1, "Minimum Wage Act Applicability," for a
detailed discussion of the exemptions contained in RCW 49.46.010(3). Also see
ES.A.9.3 - .9, related to exemptions from minimum wage and overtime for Executive,
Administrative, Professional, Computer Professional, and Outside Salespeople.
If a person who is exempted from the MWA is, nonetheless, paid overtime or is given
compensatory time off by the employer on a voluntary basis, the payment of such
additional compensation does not mean that the employee is thereafter entitled to
overtime as a matter of law. See RCW 49.46.130(2)(a).
9.2 Employees who request compensatory time off in lieu of overtime pay. RCW
49.46.130(2)(b) and WAC 296-128-560 allow employees to request compensating time
off in lieu of overtime pay. For compensatory time to substitute for a premium wage rate,
however, certain criteria apply:
1. The substitution of compensatory time off for premium pay must be at the
employee's request and must be agreed to by the employee. Compensatory
time is considered a benefit to the employee and the employer may not impose
the requirement on any employee who has not made such a request.
2. Compensatory time is valid only if accrued at the rate of one and a half hours
off for each overtime hour worked.
3. Upon termination of the employee/employer relationship, the balance of the
accrued compensatory time must be paid in wages.
Compensatory time off in lieu of overtime pay is not allowed for industries or enterprises
that are subject to the federal Fair Labor Standards Act (FLSA). Employers must contact
the U.S. Department of Labor to determine if their business is covered by the FLSA.
9.3 Persons employed as "Seamen." "Seamen," regardless of whether they are
employed on an American or other vessel. RCW 49.46.130(2)(c). Seamen who work on
American vessels are subject to the payment of minimum wage.
9.4 Seasonal employees of agricultural fairs. Seasonal employees of agricultural fairs
and seasonal employees who are employed at concessions and recreational
establishments at agricultural fairs within the state of Washington as long as "the period
of employment for any seasonal employee at any or all agricultural fairs does not exceed
fourteen working days per year."
The department interprets "agricultural fairs" to mean any area, county, district and
community fair and also including youth shows and fairs (generally having some public
education component for the purpose of educating rural youth). Examples include the
Puyallup Fair, King County Fair, Grant County Fair, etc. The exception does not apply to
amusement fairs such as a shopping mall carnival.
The fourteen-day requirement is applied to individual employees. Thus, an employer
could employ some workers for longer than fourteen days and would owe them
overtime, or such workers could work at other fairs and would be entitled to overtime for
that work, but an employer would not have to pay overtime to any individual employee
who worked fourteen days or less in a year for a fair or fair concessionaire. If an
employee does become entitled to overtime by working more than fourteen days in a
year, the original employer is not retroactively liable for overtime. In other words, the first
fourteen days of employment are not subject to the overtime requirement regardless of
whether the employee works longer or at other fairs and is subject to overtime for the
subsequent period.
9.5 Unionized motion picture projectionists. Motion picture projectionists covered by
a contract or collective bargaining agreement that regulates hours of work and overtime
pay are exempt.
9.6 Truck or Bus Drivers Subject to Federal Motor Carrier Act. Truck or bus drivers
subject to the provisions of the federal Motor Carrier Act as long as the compensation
system under which the truck or bus driver is paid includes overtime pay, reasonably
equivalent to time and one half the driver's usual hourly rate. This provision does not
apply to truck or bus drivers who are paid entirely by hourly wage rate or rates. See
WAC 296-128-011 for special record keeping requirements applicable to employers of
truck and bus drivers subject to the provisions of the Federal Motor Carriers Act, and see
WAC 296-128-012 for application to the department for approval of an alternate pay
system.
9.7 Industries that are subject to federal law requiring overtime based on a
workweek other than 40 hours. Examples in federal law include:
Industries who lease federal land for recreational purposes, which
requires payment of overtime after 56 hours per week.
Hospitals and residential care establishments that pursuant to a prior
agreement or understanding with their employees, utilize a fixed workweek
period of 14 consecutive days in lieu of the workweek for the purpose of
computing overtime, if they pay one and one-half times the regular rate for
hours worked over eight in any work day, or 80 in the 14-day period,
whichever is the greater number of hours.
9.8 Airline personnel who work more than 40 hours in a week if the hours are
accrued as the result of a voluntary shift trade with another airline employee.
When an "employee of a carrier by air" who is subject to the provisions of subchapter II
of the Railway Labor Act (45 USC § 181) voluntarily works more than 40 hours in a week
as a result of trading shifts with another employee or voluntarily accepting a
reassignment and where the trade or reassignment gives the employee the opportunity
to reduce hours in the same or in other workweeks, it is not required that the employee
be paid overtime wages for the hours over 40.
-
Special Exceptions Exist for the Following Types of Employees.
10.1 Commission Employees of Retail or Service Establishments. Employees of "retail or service establishments" need not be paid one and one-half the regular rate for hours over 40 in a week if the employee's regular rate of pay is greater than one and one-half times the current statutory minimum wage and more than half of the employee's compensation for a representative period is due to commissions on goods or services. See RCW 49.46.130(3). For a detailed discussion of application of the retail or service establishment exception to overtime, refer to administrative policies ES.A.10.1, ES.A.10.2, and ES.A.10.3. 10.2 Commissioned Salespeople Selling Cars, Trucks, RVs, Campers, Trailers, Manufactured Homes or Farm Implements to Consumers. Commissioned salespeople primarily engaged in the business of selling automobiles, trucks, recreational vessels, recreational vessel trailers, recreational vehicle trailers, recreational campers, manufactured housing, or farm implements to ultimate purchasers need not be paid additional overtime for hours over forty in a week as long as they are paid the greater of: (a) At least the current minimum wage for each hour worked up to forty hours per week and at least one and one-half times the current minimum hourly rate for all hours worked over forty in one week; or (b) A straight commission, a salary plus commission, or a salary plus bonus applied to gross salary. This exception, RCW 49.46.130(4), applies only to those workers who sell the types of vehicles listed in the statute. It is different from the retail sales exception to overtime. Employees other than salespersons may be subject to the retail sales exception in RCW 49.46.130(3). See ES.A.10.1, ES.A.10.2 and ES.A.10.3 for interpretation of the retail and service establishment exception. 10.3 Public Sector Fire Protection and Law Enforcement Employees of Agencies with Fewer Than Five Employees. Under RCW 49.46.130(5), employees of public agencies who are engaged in "fire protection" and "law enforcement" activities (which includes security personnel in correctional institutions) are not required to be paid additional overtime compensation for hours over 40 in a week if: (a) in a 28-consecutive day work period the employee earns at least one and one-half his or her regular rate of pay for hours worked in excess of 240 total in that 28-consecutive day work period; or (b) in a work period of not less than seven days but not more than 28 days, the employee earns at least one and one-half his or her regular rate of pay for total hours worked in excess of the number equal to the ratio of 240 hours to 28 days. Agencies with five or more employees in fire protection and law enforcement activities are covered by the federal Fair Labor Standards Act. -
Retaliation Protections.
An employer may not discriminate or retaliate against an employee for their exercise of
overtime rights. See RCW 49.46.210(4) and WAC 296-128-770.