8.3

Qualifying overtime premiums

The three kinds of premium pay that genuinely function as overtime pay

Section 7(h) of the Act does something the regular-rate exclusions covered in Chapter 7 do not: it lets an employer take extra premium pay that is already excluded from the regular rate and apply it, dollar for dollar, against the overtime compensation owed for that workweek. Not every excludable premium qualifies for this credit — only three narrow categories, described in section 7(e)(5), (6), and (7) of the Act, do. No other kind of extra pay, however generous, may be credited this way.

The three categories share a common thread: each pays extra because the employee worked more hours, or at a less desirable time, than an established baseline — never because of who the employee is or how well they performed. The baseline itself has to be real. Whether it is a daily or weekly hour ceiling, a set of special days, or a defined basic workday, it must come from an actual written or unwritten contract, agreement, handbook, policy, or established practice, not be invented after the fact to justify a lower true overtime rate.

The Wage and Hour Division polices the edges of this credit closely. If an employer artificially divides the normal workday into a “straight time” segment paid at one rate followed by a so-called “overtime” segment paid at a higher rate, the arrangement is treated as a device to contravene the statute's purposes, and the extra pay is folded back into the regular rate rather than credited toward overtime.

Hours beyond a daily or weekly standard

A premium paid for hours worked beyond 8 in a day, or beyond the workweek's applicable maximum, qualifies under section 7(e)(5) once that daily or weekly standard is set out in an agreement or established practice. In the § 778.202 example, a $12-an-hour employee who receives $12.50 for each hour past 8 in a day lets the employer credit the extra 50 cents per hour toward the overtime owed for hours past 40 in the workweek.

Saturdays, Sundays, and other special days

A premium of at least one and one-half times the employee's bona fide nonovertime rate, paid specifically for work on a Saturday, Sunday, holiday, or regular day of rest, qualifies under section 7(e)(6). The premium must be tied to the day itself — a rate paid only for short-notice call-ins on a day of rest, for instance, is a penalty for inconvenience rather than an overtime premium, and it stays part of the regular rate unless it is instead structured to meet the requirements for exclusion under section 7(e)(2) (see § 778.222), in which case it need not be included in the regular rate at all. Either way, that call-in premium can never be credited toward overtime under section 7(e)(6), because it is not paid for work on the special day itself.

Hours outside the clock pattern of the basic workday

Where a contract or agreement establishes certain clock hours in good faith as the basic workday or workweek, a premium of at least one and one-half times the established rate, paid for work outside those hours, qualifies under section 7(e)(7). A premium confined to particular undesirable hours within that pattern — say, only midnight to 6 a.m. — does not qualify, because it is not paid for falling outside the established workday.

Key terms

overtime premiumsection 7(h) creditspecial daysclock pattern premiumregular rate exclusion