Overtime and Comp Time

Overview

The federal Fair Labor Standards Act (FLSA) and the Washington State Minimum Wage Act (MWA) both require payment of overtime to “nonexempt” employees for the time they work over 40 hours during a 7-day work week. Law enforcement officers, firefighters, and hospital employees may have different eligibility provisions for overtime pay, and “exempt” employees and elected/appointed officials are not eligible for overtime pay at all.

If a nonexempt employee works more than 40 hours in a work week, they are entitled to overtime for the extra work time above 40 hours. Overtime pay is at least one and a half times the employee's regular pay rate. There are some limited situations where the overtime pay may exceed that pay rate, for example in a collective bargaining agreement that provides for double pay under certain circumstances.

With appropriate agreements in place, public agencies may provide “compensatory time” or “comp time” off to their nonexempt employees instead of overtime pay. Jurisdictions may also voluntarily provide comp time to exempt employees who are ineligible for overtime.

Fair Labor Standards Act vs. Minimum Wage Act

The Fair Labor Standards Act (FLSA) is the federal law which sets minimum wage, overtime pay, equal pay, record keeping, and child labor standards for employers who are covered by the Act, including local governments. The federal statutes are codified in 29 U.S.C. Ch. 8 and the administrative regulations are set in Title 29 C.F.R.

Local governments in Washington State must also comply with the state Minimum Wage Act, which is codified in chapter 49.46 RCW and its administrative regulations set in chapter 296-128 WAC.

Many of the provisions of the state Minimum Wage Act and the federal FLSA are identical, but there are some differences. When there is a difference, the local government must comply with the most favorable law when viewed from the perspective of the employee. See Washington State Department of Labor and Industries v. Common Carriers, Inc. (1988), 29 U.S.C. §218, and RCW 49.46.120.

An example of this is the state’s minimum wage rate, which is greater than the federal minimum wage rate. Employers in Washington State must pay the higher state minimum wage, and the state’s minimum wage amount is also the basis for determining whether an employee meets the salary basis test, one of the tests used to determine if an employee is exempt from overtime pay. (For more information on minimum wage issues, see our Minimum Wage webpage.)

Who is Eligible for Overtime Pay?

Overtime pay is only available to "nonexempt" employees – employees who are not exempt from the overtime requirements of federal and state law. Most local government employees are nonexempt, meaning they are eligible for overtime pay.

However, some employees are exempt from overtime as described later on this page. In addition, elected and appointed officials are not eligible for overtime pay (see 29 U.S.C. §203(e)(2)(c) and RCW 49.46.010(3)(l).

It is very important to properly classify employees as either exempt or nonexempt, though it is better to err, if at all, in favor of classifying employees as being nonexempt. If a nonexempt employee is improperly classified as exempt, the employer, if sued, will be liable for back overtime wages that should have been paid but were not, plus interest. The employer may also be liable for damages and attorney fees and costs.

Nonexempt employees who work hours in excess of their normal 40-hour work period must be paid at least one and a half times their regular rate of pay. The trigger for overtime pay is hours worked over 40 during a work week; the trigger is not the number of hours worked in a day (for example, 9 hours instead of 8 hours). While collective bargaining agreements can and do include daily overtime provisions, neither the FLSA nor the MWA mandate overtime pay based on daily work hours.

Law enforcement, fire protection, and public hospital employees may have different provisions as described below.

Overtime Pay for Law Enforcement and Fire Protection Personnel

Police officers, sheriff’s deputies, and fire department personnel are not necessarily eligible for overtime if they work over 40 hours in a 7-day work week (see 29 C.F.R. 553 Subpart C). Instead, the FLSA allows law enforcement and fire departments with five or more employees to voluntarily adopt an alternative work period for overtime purposes for those employees engaged in “law enforcement activities” (see 29 C.F.R. 553.211) or “fire protection activities” (see 29 C.F.R. 553.210).

Civilian employees in a law enforcement or fire department are not eligible for the alternative work period and are subject to the normal state and federal overtime rules.

This alternative work period exemption is often referred to as the “7(k) exemption” because it is found in Section 7(k) of the FLSA. The 7(k) exemption is not automatic; the union or local government must affirmatively adopt the alternative work period.

An alternative work period varies from the standard work week by establishing a work period of at least 7 consecutive days up to 28 consecutive days, with the number of hours for triggering overtime prorated as shown in 29 C.F.R. 553.230. For example, if a 28-day work period is established, the trigger for overtime for law enforcement is working more than 171 hours in a 28-day work period, and for firefighters it is working more than 212 hours in a 28-day work period.

If the 7(k) exemption is not adopted, then the overtime provisions under state law will apply — see RCW 49.46.130(5), which is discussed in more detail below in relationship to departments with less than five employees. As stated earlier, collective bargaining agreements may provide more generous overtime provisions than those under state or federal law.

For additional information, see the U.S. Department of Labor's Fact Sheet #8: Law Enforcement and Fire Protection Employees Under the FLSA.

Departments with Less than five Employees

Departments that employ less than five employees in fire protection or law enforcement activities are wholly exempt from FLSA overtime requirements (see 29 U.S.C. §213 (b)(20)).

However, employees working for these smaller agencies are still subject to state overtime laws (see RCW 49.46.130(5) and Washington State Department of Labor and Industries Administrative Policy ES.A.8.1 Overtime, Section 9C) and are entitled to overtime pay as follows:

• For 28-day work periods: overtime pay is due for any hours worked over 240 hours.
• For work periods less than 28-days, the 240 hours is prorated. For example, if the work period is 14 days, the employee would receive overtime pay for any hours worked over 120 hours.

Overtime Pay for Public Hospital Employees

Hospitals may adopt, by agreement directly with an employee or through their representative, a 14-day work period instead of the usual 7-day work week, if the employee is paid at least time and one-half their regular rates for hours worked in excess of 8 in a day or 80 in a 14-day work period, whichever is the greater number of overtime hours (29 C.F.R. §778.601).

What Counts as "Hours Worked"?

When determining the number of hours an employee has worked during a work week for purposes of providing overtime pay or comp time, only hours of actual work are required to be counted (29 C.F.R. §778.218). Sick leave, holidays, vacation, and other similar leave hours are not required to be counted as "hours worked" under the FLSA. For further information and examples of these leave calculations, see our webpage on Payroll Administration.

However, some local jurisdictions voluntarily choose to count paid time off as hours worked and pay overtime accordingly. Other policies pay straight time for such additional hours or allow the excess holiday/leave hours to be returned to the employee’s leave bank for future use during a subsequent work week.

Work Week vs. Pay Period

For jurisdictions using a monthly or bimonthly pay period, the "work week" for calculation of overtime is frequently misaligned with the pay period. For instance, the work week for overtime purposes might be Sunday through Saturday, but the pay period might end on a Tuesday or Wednesday.

State regulations address this misalignment and when overtime wages must be paid for each pay period; for more information see Payroll Administration.

Exempt Employees

Employees exempt from the FLSA and the Minimum Wage Act are not entitled to overtime pay. For local governments, employees are only exempt from the provisions of the FLSA if they meet all three of the following criteria:

1. Work in executive, administrative, professional, or computer professional occupations (referred to as “white collar” exemptions);
2. Satisfy a “salary basis” test, meaning they are paid the same amount per week regardless of the number of hours worked (with an exception for computer professionals who may be paid hourly) and exceed the minimum salary thresholds in federal or state law (whichever is higher, currently the state thresholds); and
3. Satisfy a “job duties” test under the appropriate occupation category.

The state salary and the hourly computer wage thresholds will automatically be adjusted each year on September 30, taking effect the following January 1. The adjustments are based on a multiplier of the state minimum wage (see WAC 296-128-545 and WAC 296-128-535), which in turn is indexed to the Consumer Price Index.

These annual adjustments will affect employees’ classification as exempt or nonexempt and employers need to review the updated thresholds each year to determine whether any employees need to be reclassified as nonexempt.

Executive Employees

To qualify for the executive employee exemption, the employee must meet all of the following criteria (29 C.F.R. 541 Subpart B and WAC 296-128-510):

• The employee’s “primary duty” (see 29 C.F.R. §541.700) must be managing the organization, or managing a customarily recognized department or subdivision of the organization;
• The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent;
• The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees must be given “particular weight;" and
• The employee must be paid on a salary basis, meaning that they are paid the same amount each week regardless of the number of hours worked and the salary is equal to or greater than the state salary threshold.

If the employee does not meet the job duties test or is paid less than the state salary threshold, they are considered nonexempt and are eligible for overtime.

For more information, see the Washington Department of Labor and Industries Administrative Policy ES.A.9.3 Executive Employees, which discusses both state and federal regulations, what is meant by “primary duty,” how to determine whether work is management, what is meant by “particular weight,” and other helpful information.

Administrative Employees

To qualify for the administrative employee exemption, the employee must meet all of the following criteria (29 C.F.R. 541 Subpart C and WAC 296-128-520):

• The employee’s “primary duty” (see 29 C.F.R. §541.700) must be the performance of office or nonmanual work directly related to the management or general business operations of the employer or the employer’s customers;
• The employee’s primary duty must include the exercise of discretion and independent judgment with respect to matters of significance; and
• The employee must be paid on a salary basis, meaning that they are paid the same amount each week regardless of the number of hours worked and the salary is equal to or greater than the state salary threshold.

If the employee does not meet the job duties test or is paid less than the state salary threshold, they are considered nonexempt and are eligible for overtime.

For more information, see the Washington State Department of Labor and Industries Administrative Policy ES.A.9.4 Administrative Employees, which discusses both state and federal regulations, what is meant by “primary duty,” types of administrative employees, what is meant by “discretion and independent judgment,” and other helpful information.

Professional Employees

To qualify for the professional employee exemption (29 C.F.R. 541 Subpart D and WAC 296-128-530), the position's “primary duty” (see 29 C.F.R. §541.700) must be the performance of work requiring either:

• Advanced knowledge (work which is predominantly intellectual in character) in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction; or
• Invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.

In addition, the employee must satisfy the “salary basis” test, meaning that they are paid the same amount per week regardless of the number of hours worked and the salary surpasses the minimum state thresholds. However, physicians, lawyers, and teachers do not need to meet the salary basis test. See 29 C.F.R. §541.303, 29 C.F.R 541.304, and