Overtime cases are filed day-in and day-out, but fundamental questions about overtime remained unanswered by the Court of Appeals, the Second Circuit, and the U.S. Supreme Court. One such question concerns unpaid overtime in situations where an employee is paid a fixed weekly salary and works fluctuating hours from week to week. In Cronk v. Hudson Valley Roofing & Sheetmetal, No. 20-cv-7131 (KMK) (S.D.N.Y. May 11, 2021), Southern District Judge Kenneth M. Karas held that in this circumstance, the appropriate measure of overtime damages is half-time (50% of the hourly rate) rather than the more familiar time and one-half (150% of the hourly rate). Cronk is required reading for all overtime practitioners.

Kinds of Overtime

Overtime is generally 1.5 times (150%) an employee's hourly wage and is oftentimes easy to calculate. The obvious case is when an employee is paid by the hour. For instance, if an employee earns $20 per hour, her overtime rate is $20 per hour multiplied by 150%, or $30 per hour. If the employee is not paid for her work after 40 hours in a week, damages are $30 per hour for each hour worked past 40 hours.

But what if the employee is paid a flat weekly salary and works different numbers of hours depending on the week? What is the hourly rate then? What is the overtime rate?