Workweek: What It Means for Employers

What it means in practice

The workweek is the measuring stick the Fair Labor Standards Act (FLSA) uses for almost everything. Overtime, coverage and payroll records are all measured by it. It is not the same thing as a schedule, a pay period or a definition of full-time hours, and a compressed schedule such as a 4-day work week still has to fit inside it.

The federal definition. Under 29 CFR 778.105, an employee's workweek is "a fixed and regularly recurring period of 168 hours - seven consecutive 24-hour periods." It need not coincide with the calendar week and may begin on any day and at any hour. A single workweek may be set for a plant or establishment as a whole, or different workweeks may be set for different employees or groups. Once an employee's starting time is set, it stays fixed regardless of the hours the employee actually works. Fact Sheet #23 (revised October 2019) adds that the Act applies on a workweek basis.

Why it matters: overtime. Section 7(a)(1) bars a covered employer from employing an employee "for a workweek longer than forty hours" unless the excess hours are paid at not less than one and one-half times the regular rate (29 U.S.C. 207(a)(1)). The regulations add that the Act generally does not require overtime for hours over eight in a day or for work on Saturdays, Sundays, holidays or regular days of rest, though contracts and state laws may (29 CFR 778.102). So, for federal purposes, the question is always how many hours fell inside one fixed 168-hour window. See overtime for the rate and regular rate rules.

Why it matters: coverage and exemptions. The workweek is also the standard for deciding whether the Act applies. If an employee does both covered and noncovered work in a workweek, all hours that week are covered unless a specific exemption applies, and the employer must show from its records any separation of covered from noncovered work by workweek (29 CFR 776.4). Overtime applies "if in any workweek" an employee is covered and not exempt (29 CFR 778.103), and the salary basis test for an exemption is also stated in weeks: an exempt employee must receive the full salary for any week in which the employee performs any work, and need not be paid for any workweek with no work (29 CFR 541.602(a)(1)).

What goes into the total. The employer must total all hours the employee worked for it in the workweek, even if two or more unrelated job assignments were performed, and for an employee jointly employed by two or more employers, all hours worked for those employers in the workweek are totaled (29 CFR 778.103). Which activities count as work time is a separate question covered under hours worked.

Each workweek stands alone. The Act "does not permit averaging of hours over 2 or more weeks." The regulation's example is an employee who works 30 hours one week and 50 the next: overtime is owed for the hours over 40 in the second week, even though the two weeks average 40. The rule applies to standard and swing-shift schedules, to employees paid on a daily, weekly, biweekly, monthly or other basis, and to pieceworkers and commission employees, whose hours and earnings must therefore be determined weekly (29 CFR 778.104). A workweek is not a pay period. Overtime does not have to be paid weekly; the general rule is that overtime earned in a workweek is paid on the regular payday for the period in which that workweek ends (29 CFR 778.106).

Changing the workweek. The beginning of the workweek "may be changed if the change is intended to be permanent and is not designed to evade the overtime requirements of the Act" (29 CFR 778.105). A change necessarily creates overlap: if the workweek began at 7 a.m. Monday and will now begin at 7 a.m. Sunday, the hours from 7 a.m. Sunday to 7 a.m. Monday are both the last hours of the old workweek and the first hours of the new one (29 CFR 778.301). If the employee does no work in the overlap, each week is computed normally. If work falls in the overlap, the Department of Labor, as an enforcement policy, accepts this method: compute pay for both weeks counting the overlap hours only in the old week, compute it again counting them only in the new week, and pay at least the greater of the two (29 CFR 778.302(a)). This does not reduce any larger amount owed under an employment contract (778.302(c)).

Hospitals and residential care: the 8 and 80 system. Section 7(j) lets a hospital, or an institution primarily engaged in care of the sick, aged or mentally ill who reside on the premises, use a 14-day work period instead of the workweek if the employer and employee agree before the work is performed and the employee receives time and one-half for hours over 8 in any workday and over 80 in the 14-day period (29 U.S.C. 207(j)). Under 29 CFR 778.601, the agreement need not be written, but if it is not, a special record must be kept. The period consists of 14 consecutive 24-hour periods and may start at any hour. Daily overtime is owed whether or not 80 hours are worked, overtime over 80 is owed whether or not any daily overtime was worked, and daily overtime premiums may be credited toward the overtime due over 80. The election must be meant to last permanently or for a substantial time, and switching between the 14-day period and the workweek to reduce overtime is not permitted. Fact Sheet #54 (revised July 2009) adds that an employer cannot use both systems for a single employee.

Public fire and law enforcement work periods. Section 7(k) lets public agencies pay fire protection and law enforcement employees, including security personnel in correctional institutions, on a "work period" basis (29 CFR 553.201). A work period is an established, regularly recurring period of at least 7 and no more than 28 consecutive days; like the workweek, once set it stays fixed and may be changed only if the change is permanent and not designed to evade overtime (29 CFR 553.224). Overtime begins after 212 hours in 28 days for fire protection and 171 for law enforcement, prorated for shorter periods: 106 and 86 hours in 14 days, and 53 and 43 hours in 7 days (29 CFR 553.230). They may in some cases receive compensatory time off instead of cash overtime (553.201(b)), and Fact Sheet #8 notes a separate exemption under section 13(b)(20) for agencies employing fewer than five such employees in the workweek. Private employers cannot use 7(k).

The fluctuating workweek. Under 29 CFR 778.114, a non-exempt employee with varying hours and a fixed salary meant to cover all hours may be paid overtime at one-half a regular rate that is recomputed every workweek, if all five conditions of 778.114(a) are met. The details and examples are in our entry on salaried non-exempt employees.

Where states differ: California (example). California defines the workweek much like the federal rule. The Labor Commissioner's glossary says it is any seven consecutive days starting with the same calendar day each week, a fixed and regularly recurring period of 168 hours, that once established remains fixed and may be changed only if the change is permanent and not designed to evade overtime. California also uses a workday, a consecutive 24-hour period beginning at the same time each calendar day. The Labor Commissioner's overtime FAQ says a nonexempt employee earns time and one-half for hours over 8 in a workday up to 12, over 40 in the workweek, and the first 8 hours on the seventh consecutive day of work in a workweek, and double time over 12 in a workday and over 8 on that seventh day. It also says an employer cannot discipline an employee for refusing to work the seventh day in a workweek. See California labor laws.

Recordkeeping. For each non-exempt employee, payroll records must show the time of day and day of week the workweek begins; if every worker in the establishment shares the same start, one notation is enough. For 7(k) employees, the records show the starting time and length of each work period instead (29 CFR 516.2(a)(5)). Records must also show hours worked each workday and in total each workweek, where a "workday" is any fixed 24 consecutive hours and a "workweek" is any fixed and regularly recurring period of 7 consecutive workdays (516.2(a)(7)). Hospitals using 7(j) record when each 14-day period begins, hours per workday and per period, and keep a copy of the agreement or a memorandum of its terms, its date and duration (29 CFR 516.23). Payroll records and written or summarized 7(j) agreements are kept at least 3 years (29 CFR 516.5), and time cards and work and time schedules 2 years (29 CFR 516.6). They feed every pay calculation.

Questions employers ask. Can our workweek start Wednesday at noon? Yes; it may begin on any day and at any hour (29 CFR 778.105). Can two workweeks be averaged on a biweekly payroll? No, outside the 7(j) and 7(k) exceptions (29 CFR 778.104). Does paid sick time count toward 40 hours? California's FAQ says no, because overtime is based on hours actually worked; its example is 48 hours paid for 40 worked, with no overtime. When is the overtime paid? Generally on the regular payday for the period in which the workweek ends (29 CFR 778.106).

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