Day Rate Workers and Overtime:
What the Law Requires and What Most Employers Skip
If you were paid a flat daily rate and worked more than 40 hours a week, federal law likely entitled you to overtime. Most employers don't calculate it correctly, and most workers never find out.
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There is no fee for your case review. If Josephson Dunlap takes your case, there is no fee unless wages are recovered on your behalf. You don't pay anything to find out if you could be owed.
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What Is a Day Rate Worker?
A day rate worker is paid a fixed amount for each day worked, regardless of how many hours that day requires. A worker might earn $300, $500, or $1,200 per day whether they work eight hours or fourteen. This pay structure is common in oil and gas, construction, film production, transportation, and healthcare staffing.
The way you are paid does not determine whether you are entitled to overtime. What matters under federal law is whether you are an employee and whether you work more than 40 hours in a workweek. For most day rate workers, the answer to both questions is yes.
Do Day Rate Workers Qualify for Overtime?
In most cases, yes. The Fair Labor Standards Act requires employers to pay overtime to employees who work more than 40 hours in a workweek, at a rate of at least one and a half times their regular rate of pay. That requirement applies to hourly workers, salaried workers, and day rate workers alike.
As with any rule, there are exceptions, but most employers don't do it correctly and in the process, end up costing their workers money. To qualify as exempt, an employee must meet specific criteria related to their job duties and how they are paid, not simply how much they earn per day. Many employers classify day rate workers as exempt without verifying that they meet the legal rules. That misclassification is one of the most common wage violations Josephson Dunlap handles.
How Is Overtime Calculated For Day Rate Workers?
This is where most employers get it wrong.
Federal law has a specific formula for day rate overtime. Take your total weekly earnings and divide them by the total hours you worked that week. That gives you your regular rate. You are then owed an extra half of that rate for every hour past 40.
Here's a step by step breakdown of what that looks like:
Imagine you earn a day rate of $400/day. You work on a project that has a schedule of 12 hours a day, 5 days a week, for six months. Here is how the math shakes out for a single week:
- Step 1: Total Weekly Earnings 5 days × $400/day = $2,000 total pay.
- Step 2: The Regular Rate $2,000 ÷ 60 total hours = $33.33/hour. (This is your "Regular Rate of Pay" for that specific week.)
- Step 3: The Overtime Premium Since your $2,000 already covered the base pay for all 60 hours, the law says you are still owed an extra "half-time" premium for every hour over 40. $33.33 ÷ 2 = $16.67 (The Premium or The Dollar Amount You Were NOT Paid)
- Step 4: The Grand Total 20 overtime hours × $16.67 = $333.40 extra per week.
The Big Picture
Over a six-month period, failing to pay this premium adds up fast. That "small" hourly adjustment means your employer would owe you $8,668.40 in back pay.
Most employers just pay the flat day rate and stop there. Some add a small overtime bonus that has nothing to do with your actual hours. Both approaches shortchange the worker, and both violate federal law.
Types of Unpaid Wage Claims We Handle
We handle the full spectrum of wage and hour violations under federal and state law, with particular expertise in:
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Employee Misclassification
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Expense Reimbursement
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Untimely Wage Payment
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Meal and Rest Break Violations
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Employer Tip Theft
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Minimum Wage Violations
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Off-the-clock Work
The Helix Energy Supreme Court Decision
In February 2023, the U.S. Supreme Court issued a ruling that changed things for day rate workers. The case was Helix Energy Solutions Group, Inc. v. Hewitt. The main plaintiff being represented earned over $200,000 a year, but even though his salary was high, the Court still said he was owed overtime.
Why? Because he was paid a day rate, not a true weekly salary.
Some employers had used this structure to avoid paying overtime to high earners. That approach no longer holds up. To qualify for the highly compensated employee exemption, an employer must pay a guaranteed weekly salary as the base. A day rate does not meet that standard, no matter how high it is. Day rate workers of all people know how true this is. Unlike a salary, if you don't show up to work, you don't get paid.
If you were paid a day rate, this ruling may apply to your situation. Depending on when the underpayment occurred, a claim may still be available.
Misclassification and Day Rate Workers
Some employers pay a day rate and label the worker an independent contractor. That label matters and is an easy way for employers to try and trick workers because contractors are generally not covered by overtime law. But your label alone does not decide the legal outcome.
Federal law looks at how the work actually happens. Does the company set your schedule? Do you use their tools? Do you work under a supervisor? Is your work central to what the company does? If the answers point to an employment relationship, the law may treat you as an employee regardless of what your contract says.
Being misclassified as a contractor can mean years of overtime you were never paid. If your day-to-day work looks like that of an employee, that classification is worth reviewing.
Common Industries Affected
Day rate pay is common where project lengths vary and workers move between job sites. Josephson Dunlap handles day rate overtime claims across many industries. Here are some examples of cases we've handled in the past:
- Offshore drilling
- Onshore drilling
- Pipeline construction and inspection
- Commercial construction
- Security guard services
Workers in these fields are frequently underpaid on overtime. They are also among the least likely to hear accurate information from their employers about what they are owed.
Ready To Get Started?
Call 888-992-2990 or contact us online by clicking the button below to request a free consultation with one of our team members. Hablamos español.
MICHAEL JOSEPHSON
ANDREW DUNLAP
RICHARD SCHREIBER
OLIVIA BEALE
ALYSSA WHITE
JULIA CLINE
SCOTT STOTTLEMYRE
Unpaid overtime Lawyers Fighting for Workers Nationwide
With more than two decades of experience, our unpaid wage attorneys have helped workers throughout the U.S. stand up to employers who would seek to cheat them out of fair wages.
Josephson Dunlap handles unpaid wage and overtime cases for workers across every pay structure, including:
We handle claims involving a wide range of violations, including:
- Employee Misclassification
- Meal & Rest Break Violations
- Delayed or Untimely Wages
- Off-the-Clock Work
Josephson Dunlap handles these cases exclusively. That focus means we know this area of law in detail and have the staff and resources to pursue claims of any size. Whether its an individual worker or a nationwide class action, we have the expertise to recover what is rightfully owed. We have helped more than 100,000 workers recover wages across all 50 states.
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Frequently Asked Questions About Unpaid Overtime
Not necessarily. The label in your contract does not decide if you are owed overtime or not. What matters is how you actually work. Does the company set your schedule? Do you use their equipment? Do you work under a supervisor? If the answer is yes, the law may classify you as an employee, no matter what your contract says.
In most cases, two years. If your employer knew they were breaking the law and did it anyway, that can extends to three years. Some states allow even longer. The clock runs from the date of each violation, so the sooner you act, the more you can recover.
Anything you have helps move your case forward. If you have pay stubs, time records, schedules, emails, or contracts. If you don't have much, that's okay. Josephson Dunlap can work with what's available. Missing records do not prevent you from filing.
The review and finding out how much you could be owed is free. Josephson Dunlap works on contingency you pay nothing unless wages are recovered.
Yes. Certain bonuses must be included when calculating your regular rate of pay. If your employer paid you a bonus but did not adjust your overtime rate, your overtime was likely calculated incorrectly for those weeks.
What Our Clients Are Saying
My experience with Josephson Dunlap was great. The team took on my lost wage case and not only represented me but also advocated for me {...} I highly and strongly recommend this firm thanks again to the team.
They were great and very easy to work with. Accommodated with my work schedule even when my schedule changed, no problem. They made the process so easy and we came out with a great outcome!
I emailed in with a question and received an immediate response from a supervisor.... On a Saturday! Yvonne was so courteous and helpful and followed up on my issue after the weekend. I truly appreciated the customer service that was provided!
The entire staff has been great handling the case from start to finish. They have kept me notified of changes and announcements along the way. Would recommend using them if you find yourself needing legal guidance
I'd like to give my appreciation and gratitude to Josephson Dunlap Law Firm. {...} Thank you for all that your law firm does for the labors of America. I would have never known about my unpaid time if it wasn't for Josephson Dunlap Law Firm and Samantha Avila.
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