## Overtime pay in Delaware The federal **Fair Labor Standards Act (FLSA)** sets minimum overtime rules — but Delaware can (and sometimes does) require more. ### Delaware overtime Federal FLSA only. ## Federal FLSA basics **Standard rule:** non-exempt employees must be paid 1.5x regular rate for all hours over 40 in a single workweek. **"Workweek"** is a fixed, recurring 7-day period — does NOT have to be Sunday-Saturday or pay-period-aligned. ## Who's exempt from overtime **Executive exemption** — salaried at $684+/week, primary duty managing, directs 2+ employees, hire/fire authority **Administrative exemption** — salaried, office or non-manual work directly related to management or general business operations + discretion + judgment **Professional exemption** — learned or creative professional, salaried at threshold **Computer professional** — salaried OR $27.63+/hour, specific computer duties **Outside sales** — primary duty making sales, customarily away from employer's place ## Misclassification — the big issue Most overtime cases involve misclassification: - Salaried ≠ exempt (must also meet duties test) - "Manager" titles that don't actually manage - Computer workers misclassified - Independent contractors who are really employees - Restaurant managers primarily doing line work If misclassified, employees can recover unpaid overtime for prior 2-3 years. ## Calculating regular rate Overtime is calculated on regular rate — more than just hourly wage: - All non-discretionary bonuses included - Commissions included - Shift differentials included - Excludes: discretionary bonuses, gifts, expense reimbursements ## Common overtime violations - **Off-the-clock work** — pre-shift, post-shift, lunch period - **Working through breaks** without comp - **"Comp time" instead of overtime** — generally illegal in private sector - **Averaging hours** across two weeks (illegal — must be calculated weekly) - **Misclassifying as exempt or contractor** - **Failing to include bonuses in regular rate** - **Donning / doffing safety gear** uncounted - **Travel time** misclassified - **Training time** uncounted - **After-hours emails / calls** ## Damages - **Back wages** for unpaid overtime - **Liquidated damages** equal to back wages (effectively doubles) - **Attorney's fees** — fee-shifting under FLSA - **Statute of limitations:** 2 years (3 for willful violations) ## Filing a claim Two paths: 1. **Wage and Hour Division of U.S. DOL** — investigates and seeks back wages 2. **Private lawsuit** — typically faster, can recover attorney's fees + liquidated damages Many cases proceed as **collective actions** (FLSA § 216(b)) — opt-in class actions. ## What you should do If you suspect overtime violations in Delaware: keep your own time records, don't sign release agreements without review, contact an employment attorney. Most Delaware wage-and-hour attorneys work on contingency. Fee-shifting means you typically pay nothing out of pocket. --- *This guide is general information about federal FLSA and Delaware law as of early 2026 and is not legal advice. Overtime rules have many exemptions and edge cases. Talk to a licensed Delaware employment attorney about your specific situation.*