DOL reminds restaurants overtime is due after 40 hours a week

A restaurant manager who puts an assistant manager on a 50-hour schedule, skips pay for closing work, or tries to “balance out” a heavy week with a lighter one later is taking on wage-claim risk. The U.S. Department of Labor says covered nonexempt employees must receive time-and-a-half for every hour over 40 in a workweek, and that rule does not change because the shift runs late, falls on a Sunday or gets offset by an easier week.

That matters in restaurants, where a Sunday-to-Thursday schedule, split shifts and last-call cleanup can make hours hard to track. The DOL defines a workweek as a fixed, regularly recurring period of 168 hours, or seven consecutive 24-hour periods, and it does not have to match the calendar week. It also says overtime cannot be averaged across two or more weeks, so a server who works 45 hours one week and 35 the next still earned overtime in the 45-hour week. Employers normally have to pay that overtime on the regular payday for that pay period.

The biggest classification mistake is treating a salaried title as a free pass. The DOL’s restaurant guidance says job title alone is not enough to decide whether a general manager, assistant manager or shift lead is exempt from overtime. Employers have to look at duties and pay basis, and the department’s 2024 salary thresholds for executive, administrative and professional exemptions were set at $43,888 effective July 1, 2024, and $58,656 effective Jan. 1, 2025. If a “manager” is working the fry station, running expo and closing the line while still below the exemption test, the restaurant can end up owing back overtime.

The next problem is off-the-clock work that looks small on the schedule but adds up fast. A cook asked to come in early for prep, a bartender told to stay after close for sidework, or a shift lead who finishes deposits and cleaning after clocking out can push a week past 40 hours without anyone noticing until a claim lands. The DOL says the legal trigger is the weekly total, not whether the work happened on a weekend, holiday or regular day of rest.

Tipped employees face another layer of risk. For restaurants covered by the FLSA, including those with annual gross sales of at least $500,000, overtime must be paid at one and one-half times the regular rate, and that regular rate for tipped workers includes cash wages, board, lodging, facilities and any tip credit. Federal minimum wage is $7.25 an hour, the maximum tip credit is $5.12, and employers must make sure tips plus direct wages reach the full minimum wage in each workweek. Managers and supervisors cannot keep tips, and requiring tipped staff to share tips with a manager or supervisor can violate the law.