In general, unless covered by a specific exemption, employees must receive overtime pay for any hours worked in excess of 40 in a workweek at a rate not less than time and one-half their regular rates of pay. Whether an employee receives a salary is only one step in the overtime exemption analysis. Even if you are paid on a salary basis, you may still be eligible for overtime pay where you work more than 40 hours in a workweek.
The law is applied on a workweek basis. Typically, overtime pay earned in a particular workweek must be paid on the regular pay day for the pay period in which the wages were earned.
When calculating an employees “regular rate of pay” for the purpose of calculating the overtime differential, the regular rate must include all pay received for employment except certain payments excluded by the FLSA. The payments which are not part of the regular rate include things like pay for expenses incurred on the employer’s behalf, discretionary bonuses, gifts and payments on special occasions like Christmas for example, and payments for occasional periods when no work is performed due to vacation, holidays, or illness. Otherwise most types of remuneration must be included when calculating an employee’s regular rate. Commissions earned in a workweek must be counted as part of the employee’s regular rate for that particular work week. Your employer must pay you an overtime rate that takes into account the commissions you earned. If you are paid overtime, but your employer does not take into account the commissions you earned that week, then there may be a violation of the law.
Earnings may be determined on a piece-rate, salary, commission, or some other basis, but in all such cases the overtime pay due must be computed on the basis of the average hourly rate of pay derived from such earnings.