A Quick Overview of Florida’s Overtime Law

Overtime laws in Florida are not unique, but they are still important and worth understanding for Florida’s employees. In general, overtime laws seek to ensure that employees are paid more for hours worked over their regular hours. In every state, there are rules about how many hours employees can be required to work before they are owed overtime. Unfortunately, there are also a number of "overtime traps" that employers can fall into that keep employees or entire classes of employees without overtime pay even when they may be entitled to it under the law.
In some cases, paying overtime can protect both employees and employers from disputes arising after employment ends. It is this concept that is embodied in both federal and Florida overtime law.
The basic principle for how overtime law works is actually very simple. When an employer requires an employee to work over forty hours in one week (from the beginning of the work week to the end of the work week), the employer may be required to pay the employee one and a half times their regular rate of pay for those extra hours. There are exceptions that allow employers not to pay overtime to a number of different types of workers. In fact , most employees may not be entitled to overtime as a matter of law. That is why it is important to have an experienced employment lawyer review your situation if you suspect you deserve overtime pay and are not receiving overtime pay from your employer.
When it comes to Florida overtime law, sometimes an employer tries to incorrectly rely on the Florida constitution. This is confusing as a matter of practice, since there are no Florida overtime laws. Instead, the Florida overtime laws come from the federal Fair Labor Standards Act. The problems arrise because the Florida Constitution does say that "no person shall be subjected to pay, for overtime, a greater hourly rate of pay than that established by law." However, there is no Florida law that requires employers to pay overtime!
On the other hand, the FLSA, a federal law passed by Congress very clearly states that overtime is a requirement for most non-exempt employees in the U.S., including Florida. But often times dishonest employers ignore what the law says to their own detriment. When it comes to overtime law, it always makes sense to err on the side of caution and pay it to workers who may be eligible to receive it.

Who is Entitled to Overtime Pay

We are quick to tell clients that being paid a salary does not always mean that you are exempt from overtime, let alone being a management position. A significant number of management and supervisory positions can qualify for overtime. Factors that determine whether an employee qualifies for overtime pay or not include the following:

  • Position: Some positions, despite being called "supervisor," "manager" or "team lead" may also qualify for overtime if they do not meet the criteria set forth below. Many positions in health services, health care, legal, restaurant or hospitality industries and even in government jobs often qualify for overtime as well. So, it is important not to make any assumptions if one qualifies for overtime pay or not based on the position title.
  • Salary: To qualify for an overtime exemption, the employee must earn no less than $684 per week ($35,568 annually).
  • Duties: The primary duties of the employee must involve white collar executive, administrative and professional tasks, along with a few other exemptions. There are also other duties requirements that must be met for certain employees (e.g., outside sales employees).

While it may be true that an employee makes over $684 per week and is considered a "manager," if the primary duties do not fall into the definitions of executive, administrative or professional, they may still qualify for overtime under the Fair Labor Standards Act.

How to Calculate Overtime in Florida

Calculating the Overtime Rate
In Florida, as well as under federal law, employers must typically pay employees 1.5 times their regular rate of pay for any overtime hours worked in a workweek over 40 hours, regardless of the payment system employed by employer. However, when determining if an employee is paid overtime in a given period an employer will first evaluate the employee’s earned compensation at the end of a respective work week.
Since the calculation of overtime is dependent on how gross earnings are paid to an employee, if the employee is paid on a basis other than a straightforward hourly rate, calculations are adjusted. When calculating overtime pay for salaried employees, there are additional guidelines. When a particular employee is classified as salaried, overtime pay is calculated based on the employee’s total salary divided by the employee’s total hours worked that week.
However, in terms of salary, if the employer does not guarantee a minimum amount and the pay is "as earned" the employee calculation will be different. In a case where an accountant is paid $75,000 per year and is guaranteed no minimum amount each week or for each hour worked, the calculation will be the same methodology as above using the annualized rate. When an employee works sporadically throughout the year, the calculation of regular hourly rate must be calculated by dividing the employee’s yearly income by the number of hours he/she was paid. For instance, an employee who earned an annual income of $50,000 and worked a total of 1,950 hours during the year would be considered to have a regular rate of pay of $25.64 for the purposes of calculating overtime (as opposed to the $24.04 per hour). In situations like these, if the employee had only earned $12,500, he then would have been found to have a regular rate of pay of $6.41 ($12,500 divided by 1,950 hours) for overtime purposes.
Regardless of how the employee was compensated, companies should be aware that in Florida it is unlawful to compensate employees differently even if the employee does not always work the same hours. However, employers in some industries tend to pay a lower rate for overtime for specific positions as was previously mentioned in the case of auto mechanics. Florida law did not require overtime to be paid in those situations. Employers who have used a flat 1.5 rate of pay for overtime do I have employees can get into violations of the law by doing so.
Also, employers should also note that, with some exceptions, an employee working two distinctly different jobs within the company should be paid different amounts of pay for those jobs. If, for example, a manager of an establishment earns $3000 per month and has been correctly receiving an overtime payment of 1.5 times his hourly rate for the 40 hours plus all hours of time he spends working beyond 40 in good faith contemplation of the employer. Now, assume that the manager also spends hours on his day off working as a server. While the employer would likely be able to successfully argue that the employee qualifies as an exempt manager, certainly some of those hours need to be compensable under both the FLSA and state law as a non-salaried worker. As such, the employer should receive different rates of pay for the day’s work and for the extra hours worked on the job when the employee is in the capacity of a manager versus when he is actually performing the duties of a server.

Overtime Exceptions Under Florida Wage & Hour Law

While a large majority of employees are entitled to receive overtime pay under the FLSA, there are certain job roles and situations that are exempt from overtime pay. The most common exemptions to overtime requirements include the following:
The salaried executive employee.
The salaried executive exemption is one of the most commonly invoked overtime exemptions. An account executive of a company typically falls within the executive exemption, so long as he or she is primarily engaged in managing the business and directing the work of other employees.
The salaried administrative employee.
The salaried administrative employee exemption covers employees who have primary duties of office or non-manual work. Such employees typically exercise discretion and independent judgment in their administrative duties, and these employees would not be eligible for overtime.
The salaried professional employee.
The professional exemption is another common overtime exemption. While the law does allow for the occasional use of overtime, when the overtime becomes excessive, that right will be lost. A job that requires a special degree is typically covered by the professional employee exemption.
The salaried computer employee.
The computer professional exemption is defined in the same section of the FLSA as the professional exemption. Computer professionals often perform high-level employee duties such as: systems analysis, programming, software engineering, and more.

How to File an Overtime Violation Complaint

If an employee thinks that he or she may be due overtime compensation, the next step is to investigate this matter further.
Florida has its own state agency that enforces overtime laws in Florida, called the Florida Department of Business and Professional Regulation (DBPR). It contains a list of Frequently Asked Questions for employees with unpaid overtime at: https://www.myfloridalicense.com/DBPR/os/business/GuideToPayingWages.DOC.
The next step is to file a complaint with the Office of Wage and Hour within the Florida Department of Economic Opportunity.
The Office of Wage and Hour can be contacted by writing to The Office of Wage & Hour, Post Office Box 535, 107 E. Madison Street, MSC 314, Tallahassee, FL 32399-4115, or by calling (850) 245 – 7137. There is a downloadable complaint form located at: http://www.floridajobs.org/PDFs/Wagehour_complaint.pdf.
The steps to filing a claim for unpaid wages are as follows:

  • Download and complete the complaint form from the Florida DEO website.
  • Submit completed form to the Florida Department of Economic Opportunity Office of Wage & Hour by fax, email, or U.S. mail.
  • The Florida DEO will investigate the claim.
  • If the claim is found meritorious, the Florida DEO will order the employer to pay the past due compensation.
  • If the employer refuses to pay the claimed amount, a lawsuit can be filed to recover any unpaid overtime.

An example of a request from the Florida DEO requesting back – pay overtime, was recently posted at: http://www . flsaovertimelawyer.com/Florida/15-2006.pdf.
To determine if the claim is meritorious, subrogation of the claim may be available through State and County legal services organizations. A subrogated claim is a claim in which a third-party legal service pays what is owed under the law (if applicable), and the third-party legal services agency sues for reimbursement in exchange for a portion of their recovery.
Further, the Florida Civil Rights Act of 1992 prohibits discrimination against an employee regarding a variety of employment matters (one of which applies to overtime). For more information on the Florida Civil Rights Act of 1992, see, http://www.dcr.state.fl.us/odic/pdf/Intro_CRA.pdf. The burden of proof is on the complaining party to show that there was and is discrimination (which includes overtime). It also provides that the procedural and remedial provisions of Title VII of the Civil Rights Act of 1964, as amended, the Employee Retirement Income Security Act, and the Fair Housing Act shall be available through administrative procedure and as a matter of state law.
A complaint must generally be filed within 365 days of the last occurrence of the alleged violation based upon State law. An employee must first file with the Equal Employment Opportunity Commission to pursue a state law claim through the FCRA. A complaint must also generally be filed within 180 days of the last occurrence of the alleged violation based upon Federal law.

Changes in Florida Overtime Law

In recent years, Florida’s Department of Financial Services has made efforts to align its overtime regulations more closely with those of the Fair Labor Standards Act (FLSA). One way they have done this is by increasing the salary threshold for those employees that fall within certain categories of exempt status. For example, the requirements of the highly compensated exempt employee exemption is now the same in Florida and under the FLSA. One interesting aspect, however, of Florida’s "Tests and Orders" is that the statute still uses the term "widely recognized and highly regarded expert" groups. Being such groups have been around for quite some time, it is unclear as to whether this notation incorrectly signals Florida’s attempts to align its standard with that of the FLSA.
Another area where Florida’s overtime laws have changed is Governor Scott’s executive order 11-01. This executive order requires state agencies that may see an increase in expenses of $200,000 or more from overtime hours worked by its salaried employees to seek legislative approval.
In addition to these changes, Florida and other states have considered several bills raising the minimum wage in 2015. Florida is currently at $8.05 per hour, which is higher than the federal minimum wage, but did not adopt any significant changes. Some other states did raise their minimum wage to $10, $11, and some even higher.

Federal Overtime Rules Affecting Florida Workers

While Florida employers must comply with the overtime provisions in the Florida Constitution and Florida Statutes, what happens when federal law overlays additional obligations for overtime? What if Florida provides for less overtime than required under federal law? Employers must consider that question.
The Fair Labor Standards Act ("FLSA") is a federal law that established minimum wage and overtime obligations for covered employers and employees. For the state-mandated minimum wage, employers are subject to whatever requirements provided in the Florida Constitution and Florida Statutes. However, the FLSA minimum wage is $7.25 and preempts the Florida minimum wage for lower income employees in the areas surrounding a larger urban city in certain Florida counties. The FLSA overtime obligation requires that employees be paid for their overtime hours at a rate of 1.5 times the employee’s regular hourly rate of pay.
Federal law provides, in part, as follows:

(1) Overtime compensation

No employer shall employ any of his employees who in any workweek is engaged in commerce or the production of goods for commerce, or who is employed in an enterprise engaged in commerce or in the production of goods for commerce, unless such employee receives compensation for his employment in excess of the hours specified in this subsection at a rate not less than 1½ times the regular rate at which he is employed.

(2) Regular rate

For purposes of determining the rate at which payment is made under subsection (a), there shall be excluded from calculation pursuant to one or more of the foregoing subparagraphs the following: (A) sums paid in recognition of tips (not exceeding 40 cents per hour). . . .
29 U.S.C. § 207 (West).
As can be seen from the above, the FLSA provides that overtime pay must be at least 1.5 times the regular rate of pay. The regular rate of pay is not the set rate of pay agreed to by the employer and employee. Currently, the Department of Labor does not require employers that pay their employees a daily or weekly salary to use an hourly calculation to determine their regular rate of pay, despite the set salary.
What happens if the Florida minimum wage is lower than the federal minimum wage? The FLSA provides that where a state and federal overtime law overlap, the employee is entitled to the greater benefit. Employers must determine which law provides a greater benefit to the employee and comply with that law. For example, under the Florida Constitution and Statutes, overtime hours in the amount of 1.5 times the regular rate of pay must be paid to Florida non-exempt employees. However, if the federal minimum wage was reduced to $5.00 per hour and tipped employees’ servers were receiving less than $1.30 per hour, then the FLSA would apply and those employees would be due overtime wages at 1.4 times. Federal overtime laws provide a greater benefit to employees. Employers, of course, are not required to pay an employee overtime, above and beyond what is required by state law.
Employers are always advised to ensure that their overtime calculations help an employee, and not harm them, and that all overtime payments are paid out in compliance with state and federal law.

Legal Resources

When faced with issues concerning overtime pay and eligibility, both employees and employers in Florida may seek legal advice from a number of resources. The United States Department of Labor (DOL) offers a wealth of information regarding overtime, including details on the Fair Labor Standards Act (FLSA), common FLSA questions, and assistance with wage and hour problems. The DOL website also provides links to the various Wage and Hour Division offices located throughout the state of Florida .
The Florida Division of Worker’s Compensation is another source where employers and employees may find many resources containing information specific to overtime and other related Florida employment law issues.
Employees and employers with more complex overtime concerns may wish to consult an attorney in order to acquire specific and detailed advice about the relevant legal issues. Florida also has a number of legal aid organizations that provide residents with free or low-cost legal guidance; eligible individuals should check a list of local legal aid organizations in their area through the ABA Free Legal Answers program.