The 8-and-80 Overtime Rule: How 14-Day Overtime Works

Some hospitals and nursing homes calculate overtime differently from other employers. Instead of paying time and a half over 40 hours in a workweek, they may use a 14-day period with a daily test. This guide explains the 8-and-80 rule, who can use it and how the pay works, with worked examples.

What the 8-and-80 rule is

Most employees get overtime for hours over 40 in a workweek. Section 7(j) of the Fair Labor Standards Act (29 U.S.C. 207(j)) creates an alternative for a narrow group of employers: hospitals and certain residential care facilities. These employers may, by agreement with the employee, use a 14-day work period instead of a 7-day workweek. Under that arrangement, the employee must be paid time and a half the regular rate for all hours over 8 in a workday and all hours over 80 in the 14-day period. That is why it is called the 8-and-80 rule, or sometimes "8/80." The Department of Labor's regulation on it is 29 CFR 778.601.

Who can use it

The rule is not available to every employer. It applies only to an employer engaged in the operation of a hospital or an establishment that is an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises. In practice that means hospitals and residential facilities such as nursing homes. Outpatient clinics, physician offices, home health agencies and other employers outside that description generally cannot use the 8-and-80 rule and must follow the ordinary 40-hour workweek. Within an eligible facility, the arrangement can apply to any non-exempt employee covered by the agreement, not only nurses, so aides, technicians, housekeeping and dietary staff may be included.

The conditions

• There must be an agreement or understanding between the employer and the employee before the work is performed. Federal rules do not require a particular form, but a written agreement is the safest way to prove it exists.
• The 14-day work period must be fixed and regularly recurring, a period of 14 consecutive days (336 hours). It is common, though not required, for it to match a biweekly pay period.
• Overtime at one and one-half times the regular rate must be paid for hours over 8 in a day and hours over 80 in the 14-day period.
• Hours are not counted twice. If an hour qualifies as overtime under both the daily test and the 80-hour test, it is paid as overtime once.

How the pay is calculated

For each 14-day period, add up the hours over 8 in each day. Then compare that total to the hours over 80 in the whole period. The employee is owed overtime on whichever is larger, because the larger number captures every hour that qualifies under at least one test. All other hours are paid at the regular rate. Let us work through three examples at a regular rate of $30.00 an hour, with time and a half equal to $45.00.

Example A shows that an 80-hour period can still produce overtime. With four 10-hour days, there are 2 hours over 8 on each, or 8 hours of daily overtime, even though the total is exactly 80. Example B has 18 hours over 8 in a day and 10 hours over 80. Because the 10 hours over 80 are among the same hours already counted as daily overtime, only 18 hours are paid at time and a half, not 28. Example C shows why employers like the system: the employee works 48 hours in the first week and 32 in the second, and none of that triggers overtime because no day exceeds 8 hours and the period does not exceed 80. Under a normal 40-hour workweek, the first week would include 8 overtime hours and the pay would be 72 × $30 + 8 × $45 = $2,520.00 instead of $2,400.00.

You can run weekly versions of these calculations with the Overtime Pay Calculator, and total your daily hours with the Weekly Time Card Calculator. For the standard approach, see how to calculate overtime pay.

Why long shifts can be costly under 8/80

Hospitals commonly schedule 10- or 12-hour shifts. Under the standard rule, three 12-hour shifts a week is 36 hours and generates no federal overtime. Under 8/80, each 12-hour shift has 4 hours over 8, so even a modest schedule creates daily overtime. A nurse who works six 12-hour shifts in 14 days works 72 hours, below 80, yet is owed 6 × 4 = 24 hours of overtime pay. For that reason, many hospitals that use long shifts do not adopt 8/80, or they only apply it to employees on 8-hour schedules. The employer decides, but the employee must agree before the work is performed. For pay tables on common 12-hour schedules, see 12-hour shift overtime.

Regular rate, differentials and breaks

Overtime under 8/80 is based on the regular rate, which includes shift differentials and certain bonuses, as in any overtime calculation. A nurse who earns $30.00 plus a $3.00 night differential on a particular shift must have the differential counted in the regular rate for overtime hours. For the weighted-average method, see overnight shift hours. Unpaid bona fide meal periods can be deducted from hours worked, but meal breaks during which the employee is on duty must be paid. Read what counts as hours worked for details, especially for on-call and pre-shift time in healthcare settings.

Biweekly pay and the 14-day period

The 8-and-80 period is a work period and is not the same as a pay period. Many hospitals align the two so that a biweekly paycheck covers one 14-day period. If your employer pays semi-monthly, the 14-day work period still runs separately and overtime is due on the payday for the period in which the work period ends. See biweekly vs. semi-monthly pay for how pay frequency interacts with overtime.

State law and exemptions

The FLSA sets a minimum. If your state requires daily overtime or has its own rules for health care employees, the state rule may be stricter, and an employer must follow whichever rule is more protective of the employee. Employees who are properly exempt, such as certain registered nurses and physicians who meet the professional exemption tests, are not entitled to overtime under either system. Whether a nurse is exempt depends on salary basis and duties, not on the job title; see exempt vs. non-exempt employees.

Practical checklist

1. Ask HR whether your facility uses the 8-and-80 rule and when your 14-day work period starts.
2. Confirm what you agreed to and when. The agreement must come before the work.
3. Record the start time, end time and unpaid meal break for every day.
4. At the end of each period, calculate hours over 8 each day and hours over 80 in the period, and compare the larger number with the overtime on your paycheck.
5. If the numbers do not match, raise it with payroll in writing.

This guide is for general informational purposes only and is not legal, tax, or financial advice. Labor laws vary by state and change over time. Confirm your specific situation with your employer, HR department, or the U.S. Department of Labor.