The rule: past 40 hours, on the full minimum
Under federal law, every hour past 40 in a workweek is paid at 1.5 times your regular rate (DOL Fact Sheet #23). On a tipped wage, your regular rate isn’t your $2.13: the tip credit counts as wages, so it’s the full minimum. The DOL says it plainly: when an employer takes a tip credit, overtime is figured on the full minimum wage, not on the cash wage (Fact Sheet #15).
The federal math: $7.25 × 1.5 = $10.88. Your employer can take the same $5.12 tip credit, and no more, so it pays at least $10.88 − $5.12 = $5.76 an hour for each overtime hour (the DOL’s own example). Not $3.20, which is what 1.5 × $2.13 gives.
A 46-hour week, worked out
Six shifts in one workweek: 8, 8, 7, 9, 8 and 6 hours. That’s 46 hours, so 6 of them are overtime.
- Regular40 h × $2.13
- $85.20
- Overtime6 h × $5.76
- $34.56
Cash wages for the week$119.76
Your tips don’t change the rate. They’re yours on top, and they don’t count in the regular rate for overtime (29 CFR 531.60). The weekly tip-credit check still runs: if your tips don’t cover the tip credit taken on every hour, overtime hours included, your employer makes up the rest. See how the tip credit works.
In your state
States with a higher minimum use the same math with their own numbers: 1.5 times the state minimum, less the state’s tip credit. Where there’s no tip credit, it’s simply 1.5 times your rate.
| Where | Minimum wage | Tipped cash wage | Overtime, per hour |
|---|---|---|---|
| Federal law | $7.25 | $2.13 | $5.76 |
| Florida | $15.00 | $11.98 | $19.48 |
| New York (NYC area) | $17.00 | $11.35 | $19.85 |
| California | $16.90 | —no tip credit | $25.35 |
Some states also count overtime by the day. California pays 1.5 times past 8 hours in a day and double past 12, with its own rules for a seventh day in a row (Labor Commissioner). So a 10-hour double there has 2 hours of overtime even in a short week. Alaska pays daily overtime past 8 hours (Alaska DOL), Colorado past 12 (CDLE), and Nevada past 8 in a 24-hour period if you earn less than 1.5 times its minimum wage (Nevada Labor Commissioner). Hours already paid as daily overtime don’t count again toward the 40.
What counts toward the 40
- All the hours you work. Side work, the pre-shift meeting, closing duties. Short breaks of about 5 to 20 minutes count as hours worked; a real meal break, usually 30 minutes or more with no duties, doesn’t (DOL).
- Not your tips. They stay out of the rate.
- Service charges, yes. An automatic 18% on a big party isn’t a tip. If part of it is paid to you, it’s wages, and it goes into your regular rate for overtime (Fact Sheet #15).
- Not weekends or holidays, by themselves. Federal law pays nothing extra for a Sunday or a holiday shift. Only the hours past 40 count, plus your state’s daily rule if it has one.
Workweeks, not pay periods
Each workweek stands alone: the law doesn’t let your employer average two weeks (29 CFR 778.104). Paid every two weeks, with 30 hours one week and 50 the next? You’re owed 10 hours of overtime, even though 80 hours over two weeks looks normal.
Your workweek is a fixed run of seven days that your employer picks, and it doesn’t have to start on Monday. Ask which day it starts. That decides which shifts land in which week, and so which hours are overtime.
Two positions at two rates in the same week, say the floor and a couple of host shifts? Then overtime is figured on the weighted average of your pay for all your hours that week (29 CFR 778.115).