• Each agency is responsible for determining whether the positions in their agency are exempt or non-exempt from the overtime requirements of the Fair Labor Standards Act (FLSA). Human Resource Management Services is available to assist agencies.
  • Executive, administrative, and professional employees, as defined by the FLSA, are exempt from the overtime pay provisions of the FLSA.
  • Non-exempt employees must be paid time and one-half their regular rate of pay for all hours worked in excess of 40 hours in a work period.
  • Compensatory time off may be used in lieu of overtime compensation and must be at a rate not less than one and one-half hours for each hour of work for which overtime pay would normally be required. There must be an agreement or understanding between an employee and the agency, prior to the performance of work, to substitute compensatory time-off for overtime pay.
  • Compensatory time accrual is limited to 240 hours; unless the employee's work on a regular or continuing basis includes public safety, emergency response or seasonal activities, then the limit is 480 hours. Upon reaching the limit, an employee must either receive cash for additional hours of overtime worked or use some of the compensatory time before accruing additional overtime pay in the form of compensatory time off.
  • Unused compensatory time off must be paid upon separation. The rate of pay must be either the employee's final regular rate or the average regular rate received by the employee during the last three years of employment, whichever is higher.


  • Payroll/personnel officers should refer to the Fair Labor Standards Act on procedures for calculating overtime pay.
  • When employing an individual that works in another agency, administrators should be aware that the state, not an individual agency, has been determined to be the employer. This has resulted in overtime liability for both agencies.


29 USC §207 (FLSA)
NDAC 4-07-07