This page was formerly named ERD-8298-P
The information in this page should be regarded as only a summary of the overtime regulations. You are urged to contact the division for more details as they apply to a specific situation.
The state overtime law applies to most Wisconsin employers, including state and local units of government but not necessarily to each individual worker. Covered workers, regardless of age, must be paid 1 1/2 times their regular rate of pay for all hours worked in excess of 40 hours a week.
The law applies to factories, mercantile (see definition of mercantile) or mechanical establish-ments, restaurants, hotels, motels, resorts, beauty parlors, retail and wholesale stores, laundries, express and transportation firms, telegraph offices and telephone exchanges.
“Mercantile” means, “pertaining to merchants or trade,” and is viewed with regard to profit or designed for profit; designed for mass appeal, emphasizing skill and subjects useful in business. “Trade” means the business or work in which one engages regularly, an occupation requiring manual or mechanical skill; the persons engaged in an occupation, business, or industry, dealings between persons or groups, the business of buying and selling or bartering commodities or services, to do business with, to have dealings, to give one thing in exchange for another.
Under the Wisconsin Employment of Minors regulation, 16 and 17-year-old minors may be employed more than 8 hours a day or 40 hours a week when school is not in session. They must receive one and one half times the regular rate of pay, for all hours worked in excess of 10 hours per day or 40 hours per week and that, they do not work in excess of 50 hours per week. The exception to this rule is that minors who are 14 to 17 years of age may be employed more than 50 hours per week in agriculture during peak periods.
It is the intent of the department to interpret these exemptions to be consistent with any comparable federal statute or regulation in respect to the following employees:
No. In calculating overtime pay, the number of hours worked each week in the pay period must stand-alone. If an employee worked 35 hours one week and 45 hours the second week of a pay period, the employee would be due 5 hours of overtime premium pay for that pay period.
An employer and an employee do not have the authority to reach an agreement to waive a state law or regulation concerning overtime pay. Since federal law may also require an employer to pay its employees overtime pay, it should be noted that a modification or waiver of state overtime rules would not exempt the employer from any federal overtime requirement.
Yes. Work not requested but suffered or permitted is work time. It is the duty of management to exercise control and see that work is not performed if the employer does not want it to be performed. An employer cannot sit back and accept the benefits without compensating employees for them.
Whether an employer chooses to pay the overtime premium directly in wages or offers the employee compensatory time, the employer is obligated to pay the person 1 ½ times their regular rate of pay for the overtime hours. If the employer pays the overtime premium by allowing the employee to use compensatory time the employee is entitled to use 1.5 hours of compensatory time for each overtime hour worked. Nongovernment employers must also ensure the employee uses the compensatory time within 31 days of when the time is earned.
Employees under 18 years of age must receive at least a 30-minute duty free meal period when working a shift greater than 6 hours in duration. Section DWD 274.02(2) recommends that employers provide similar breaks to adults but does not require such breaks for adults. If an employer provides breaks of less than 30 consecutive minutes in duration, the break time will be counted as work time.
Employers must pay all employees for “on duty” meal periods. An “on duty” meal period is one where the worker is not provided at least 30 consecutive minutes free from work, or where the worker is not free to leave the premises of the employer during a meal period.
Employers also are not allowed to require that meals be accepted as part of the worker’s wages.
State law does not require that brief rest periods, or coffee breaks, be provided to employees. Such matters are to be determined between the employer and the employee directly.
Rest periods or breaks of less than 30 consecutive minutes each shift are considered work time and must be paid for. Employers may not deduct from a worker’s wages for any time off less than 30 consecutive minutes.
Each employer subject to Wisconsin’s overtime regulations must pay to each covered employee 1 1/2 times the employee's regular rate of pay for all hours worked in excess of 40 hours per week.
“Week” means a calendar week or a regular reoccurring period of 168 hours in the form of seven consecutive 24- hour periods.
Adults may work an unlimited number of hours per day and per week, as the law sets no limits.
The employer has the legal right to set the schedule of hours to be worked and the employee does not have the right to refuse to work unless otherwise negotiated in a collectively bargained agreement.
“Regular rate” includes all remunerations paid to or on behalf of the employee such as commissions, nondiscretionary bonus, premium pay, and piecework incentives.
“Regular Rate of Pay” is defined as the employee’s rate of pay per hour. An employer may choose to pay employees on a salary, commission, piece rate or other basis, but for purposes of calculating overtime pay for an employee, the employee’s wages must be converted into an hourly rate of pay. This can be accomplished by dividing the total hours an employee actually works in a pay period into the total regular wages the employee is paid in that pay period (regular wages would include hourly wages, commission, piece rate pay, bonuses, etc.)
The employee earns a salary of $200.00 per week plus commission. In this week, the employee worked 44 hours and earned a commission of $45.00. Total wages earned in that week total $245.00. The $245.00 becomes straight time for the 44 hours worked. The 44 hours are then divided into the $245.00 to arrive at the regular average hourly rate of $5.57 per hour. The $5.57 is then divided in half, $2.785, to arrive at the half time rate. Then the 4 hours of over-time (44 hours minus 40 equals 4 hours of over-time), times $2.785 equals an additional $11.14 in overtime wage due in this week. Therefore, the total wages to be paid for that week equals $245.00 plus $11.14, for a total of $256.14.
Employers can set the hours and days of work, they wish their employees to work. In factories and mercantile establishments, Wisconsin sets limits in which employees must have one day of rest somewhere in a seven-day workweek, by the “One Day of Rest in Seven” law. This law also exempts certain specific employments from coverage. The department can explain to you which jobs are exempted.
The law provides that all employees in those covered establishments must be given 24 consecutive hours of rest in each calendar week.
However, the law does not provide that the rest must be given every 7 days. For example, an employer may legally schedule work for 12 consecutive days within a two-week period if the days of rest fall on the first and last days of the two-week period.
An employer is permitted, upon joint request of its employees, to ask the Department to waive provision of the One Day of Rest in Seven Law in unusual circumstances. If the Department grants such a waiver, the employer can ask employees if they wish to volunteer to work without rest.
Minors under age 18, unless they are high school graduates or are not required to attend school, are limited to 6 days of work a week in all employments under the Employment of Minors law, and thus are not affected by this statute.
Employers must keep the following records for at least 3 years for each employee, other than exempt employees paid on other than an hourly basis.
Upon an employee’s request, the employer must permit him or her to inspect certain personnel documents. Please refer to Section 103.13, Wis. Stats., for information that is more detailed.
The Fair Labor Standards Act, which is administered by the U.S. Dept. of Labor, may set overtime pay requirements for occupations or industries exempted by state law. It is the responsibility of the employer to determine liability under both laws. Complaints may also be filed with the following agency:
U.S. Labor Department - Wage and Hour Division
Phone: (608) 441-5221