Overtime: Exempt vs. Non-Exempt and the 40 Hour Work-Week

"It's our busy season at work and my boss has been asking me to work late. But she makes me punch out right at 5pm, because I'm not 'eligible' for overtime."

Both the Massachusetts Overtime laws and the Federal Fair Labor Standards Act (FLSA) require that employers pay overtime to those individuals who are not "exempt" from the overtime requirements. But employers often skirt the rules to save money. They do this by classifying certain jobs as either exempt from the overtime rules and regulations, or non-exempt.

Typically, three exemptions are cited when employers wish to avoid paying overtime: bona fide executive, administrative or professional. But there are many other exemptions, focusing on the employee's actual job duties or the nature of the employer's business. The analysis is critical, because employers are permitted by law to require exempt employees to work in excess of 40 hours without paying any overtime compensation.

There is no law in Massachusetts (and no Federal law) limiting the number of work hours per week, except for those applicable to minors and certain regulated industries. But non-exempt employees may not be required to work overtime without additional compensation - defined as time and one-half of the regular rate of pay.

Lastly, Massachusetts law has special rules requiring extra pay on Sunday in certain circumstances - the Blue Laws.

Salary vs. Hourly Pay Mistakes

"My company pays us on a salary basis. I work pretty long hours, and I get the feeling they're paying us a salary to avoid paying the extra hours we work."

With few exceptions, exempt employees must be paid on a salaried basis in order for the employer to qualify for the exemption. Everyone else should be paid on an hourly basis.

Non-exempt employees improperly paid on a "salary" basis are considered hourly employees whose regular hourly rate is determined by dividing the salary by either 40 or the total number of hours worked during the week.

If you feel you have been wrongly classified as an exempt employee or that you're otherwise due overtime contact us today.


This information is not a do-it-yourself guide to resolving employment disputes or handling employment litigation. While some may find this useful for understanding the basic issues and their legal context, it is NOT a substitute for experienced legal counsel and does not provide legal advice.  Please contact the team at Gordon Law Group to discuss your specific case.