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Kevin O'Flaherty

In this article, we discuss eligibility for overtime pay under Illinois and Federal law and whether workplace changes due to coronavirus will affect eligibility. We will answer the following questions:

  • What are the guidelines for overtime pay under the Fair Labor and Standards Act?
  • What are the guidelines for overtime pay under Illinois law?
  • Will non-eligible employees be eligible for overtime due to coronavirus emergencies?

What are the Guidelines For Overtime Pay Under the Fair Labor and Standards Act?

With coronavirus cases still rising and falling in certain parts of the United States and around the world there seems to be no indication that changes in workplace conditions will be back to normal anytime soon. And while we’ve seen some concessions made for frontline workers during the pandemic, there has been little chatter regarding temporary changes in overtime pay. The main concern for overtime pay during the pandemic is what happens when workers normally exempt from overtime pay, usually because they are salaried, are forced to work extended hours, or in positions that are not normally exempt from overtime pay?

Generally, under the Fair Labor and Standards Act an employee that works over forty hours in a given week should receive overtime pay unless they qualify for one the FLSA’s many overtime exemptions. Originally, if an employee made over $23,660 annually (or over $433/week) that employee could be labeled as “salaried” and be exempt from the federal labor overtime laws, but new legislation that increased that amount to $35,568 ($913/week) was slated to start January 1st, 2020. However, simply labeling an employee as salaried does not automatically make them exempt from federal overtime law. Other criteria include the employee’s job duties, executive duties, professional duties, administrative duties, whether overtime pay is governed by something other than federal law (such as in most unions), etc. It should be clear to the employee from the outset of any new job, or a change in position, if they are eligible or not for overtime pay. Companies that attempt to blur the lines between overtime-exempt and nonexempt employees can face fines or criminal charges.

What are the Guidelines for Overtime Pay Under Illinois Law?

Illinois overtime law, described under the Illinois Minimum Wage Law, runs parallel with most of the guidelines set forth under the Fair Labor and Standards Act. However, there are some differences between Illinois overtime law and federal overtime law, including:

  • Illinois law requires the company have 1 or more employees versus a $500,000 gross income to be covered under the law;
  • Simply labeling an employee as “salaried” does not make them exempt;
  • The Illinois statute of limitations on overtime claims is 3 years from the date the pay was earned versus 2 years in normal circumstances under the federal law;
  • Under Illinois law, employees may receive 2% per month of non-payment interest as a penalty, as well as reimbursement for court and attorney fees if litigation is necessary.
  • Executive employees who make over $100,000/year are most certainly exempt from overtime.

Will Exempt Employees Be Eligible For Overtime Pay Due to Coronavirus Emergencies?

Many companies have seen drastic and rapid changes in their workforce due to coronavirus. Some of these changes were expected and implemented by the company as a way to manage the loss of business while others were due to workers getting sick in large numbers. Whatever the reason, many employers have had to lean harder onto existing employees to fill gaps in coverage and production. Likely, this has to lead to more employees working overtime or in roles that would normally be eligible for overtime pay. So what does this mean for employees who are normally considered exempt, but have to perform duties that might be considered nonexempt from overtime pay?

There are rules under the Fair Labor and Standards Act meant to handle emergency situations, but the United States hasn’t seen this kind of impact on its workforce since the early to mid 20th century. One such stipulation under federal law provides some guidance for overtime-exempt workers being required to perform nonexempt work in emergency situations. Under this rule, exempt workers performing in nonexempt roles are still considered exempt employees, regardless of the nature of the emergency. This would suggest that despite the workforce issues caused by Covid-19 we won’t be seeing overtime-exempt employees getting paid overtime anytime soon. However, when push comes to shove the Department of Labor may have to evaluate what is considered an “emergency,” with any blanket rulings handed down by the DOL possibly resulting in overtime paid to exempt employees. Likely, it will be up to the companies to prove that the need to have exempt employees working in nonexempt roles was completely out of their control and unanticipated but required for the company to continue to function. Simply having an increase in demand for a product due to the coronavirus is unlikely to qualify as an emergency and some companies may find themselves required to pay overtime to its employees.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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