TL;DR: Under federal law, most hourly construction workers must get 1.5x their regular rate for every hour over 40 in a workweek, and there is no federal daily overtime. If the project is federally funded or assisted and over $2,000, Davis-Bacon prevailing wages and fringe benefits apply on top of that, and larger federal contracts add CWHSSA overtime. A 1099 or a “salaried” label does not by itself take away your right to overtime.
I place people on large construction projects, and pay questions come up on almost every call. “Is this salary exempt?” “Why is my per diem not in my overtime?” “They want me on a 1099, is that normal?”
This guide is part 5 of my construction series. It walks through the federal pay rules the U.S. Department of Labor’s Wage and Hour Division (WHD) enforces on construction sites: FLSA overtime, Davis-Bacon prevailing wage, CWHSSA overtime, worker misclassification, travel time and how to file a complaint. Everything here is as of October 2026 and linked to the official source.
FLSA overtime: 1.5x after 40 hours in a workweek
The Fair Labor Standards Act (FLSA) is the baseline for almost every private construction job. According to WHD Fact Sheet #23, covered, non-exempt employees must be paid at least one and one-half times their regular rate for hours worked over 40 in a workweek.
Three details trip people up:
- The workweek is fixed. It is a “fixed and regularly recurring period of 168 hours,” or seven straight 24-hour periods. It can start on any day and hour, but it can’t move around to avoid overtime.
- No averaging. Each workweek stands alone. Working 50 hours one week and 30 the next does not “average out” to 40. You are owed 10 hours of overtime for the first week.
- No federal daily overtime. The FLSA counts hours by the week, not by the day, and it does not require extra pay just for weekends or holidays. A 12-hour day is not overtime under federal law unless your weekly total goes over 40.
States can be stricter, and when both apply you get the standard that pays more, as the DOL FLSA FAQ notes. California is the best-known example. Under California’s wage order (8 CCR 11040), non-exempt workers get 1.5x for hours over 8 in a workday (up to 12), double time for hours over 12 in a workday, and premium pay on the seventh consecutive day of work in a workweek. If your project is in another state, check that state’s labor department.
“Salaried” does not mean “exempt”
To be exempt from overtime as an executive, administrative or professional employee, you generally need both a salary of at least $684 per week and job duties that meet the tests. Fact Sheet #17A is blunt: “Job titles do not determine exempt status.” It also says manual and skilled trade workers such as mechanics, electricians and laborers are not exempt under these rules “no matter how highly paid they might be.” I go deeper on this in exempt vs non-exempt overtime.
Davis-Bacon: prevailing wages on federally funded projects
The Davis-Bacon and Related Acts (DBRA) apply to federal and D.C. contracts over $2,000 for construction, alteration or repair of public buildings or public works, including painting and decorating. The “Related Acts” extend the same rules to most federally assisted construction, such as projects funded under the Federal-Aid Highway Acts or HUD programs (Fact Sheet #66, DOL Employment Law Guide).
What it means for workers:
- Prevailing wage by classification. Laborers and mechanics on the site of the work must get at least the local prevailing wage and fringe benefits listed in the contract’s wage determination for their job classification.
- Wage determinations are public. You can search them on SAM.gov.
- Fringe benefits count. The employer can meet the rate entirely in cash, or with a mix of cash and bona fide fringe benefits (such as plan contributions). Either way, the total has to reach the listed rate for all hours worked on site.
- Paid weekly. Covered workers must be paid weekly.
- Posted on site. The wage determination and the Davis-Bacon poster (WH-1321) must be posted where workers can easily see them.
- Apprentices. They can be paid below the listed rate only if individually registered in a DOL-registered or state-recognized apprenticeship program.
Certified payroll (WH-347)
Contractors and subcontractors on DBRA jobs submit weekly certified payrolls, within seven days after the regular pay date, with a signed Statement of Compliance. DOL’s Form WH-347 is optional, but the weekly reporting is not. The payroll shows each worker’s classification, daily straight-time and overtime hours, rates, fringe benefits, deductions and net pay. Contractors must keep these records for three years after the prime contract work is done.
CWHSSA: overtime on larger federal contracts
The Contract Work Hours and Safety Standards Act (CWHSSA) requires contractors to pay laborers and mechanics, including guards and watchpersons, at least 1.5x their basic rate for all hours over 40 in a workweek (DOL Employment Law Guide). It applies to federal contracts generally over $150,000. The threshold is $100,000 for federal construction contracts not subject to the Federal Acquisition Regulation and for federally assisted DBRA contracts where the government is not a direct party. It does not apply when the only federal help is a loan guarantee or insurance.
If a contractor lets someone work over 40 hours without the required overtime, liquidated damages can be assessed for each calendar day of the violation and withheld from contract payments.
FLSA vs Davis-Bacon vs CWHSSA at a glance
| FLSA | Davis-Bacon (DBRA) | CWHSSA | |
|---|---|---|---|
| Which jobs | Most private and public employers | Federal/D.C. and most federally assisted construction contracts over $2,000 | Federal contracts generally over $150,000 ($100,000 for non-FAR federal construction and federally assisted DBRA contracts) |
| Main rule | Minimum wage plus 1.5x overtime after 40 hrs/workweek | Prevailing wage plus fringe benefits by job classification | 1.5x basic rate after 40 hrs/workweek |
| Who is covered | Non-exempt employees | Laborers and mechanics on the site of the work | Laborers and mechanics, including guards and watchpersons |
| Pay timing / records | Accurate records of hours and pay; no federal pay stub rule | Weekly pay; weekly certified payroll; records kept 3 years | Overtime shown on certified payroll on DBRA jobs |
| Where to look it up | Fact Sheet #23 | Wage determination on SAM.gov | elaws CWHSSA guide |
One practical point: most large private plant projects (a battery or chip plant built with private money, for example) are FLSA plus state law only. Davis-Bacon applies when there is a covered federal contract or federal assistance that carries DBRA labor standards. Ask the employer whether the job is prevailing wage.
Misclassification: employee or independent contractor?
WHD defines misclassification as treating a worker who is an employee under the FLSA as an independent contractor. Misclassified workers can lose minimum wage, overtime and other protections. Fact Sheet #13 makes three points every field worker should know:
- “What the worker is called is not relevant.”
- “A worker who is paid off the books or receives a 1099 is not necessarily an independent contractor.”
- A signed independent contractor agreement does not settle the question either.
The test looks at economic reality: your chance for profit or loss from your own business decisions, your investment, how permanent the relationship is, how much control the company has, whether your work is central to its business, and whether you use skills with real business initiative. No single factor decides it.
Where the rule stands in October 2026
- The 2024 independent contractor rule took effect March 11, 2024 and is codified at 29 CFR Part 795. It is being challenged in court.
- On May 1, 2025, WHD issued Field Assistance Bulletin 2025-1, telling investigators to stop applying the 2024 rule’s analysis in enforcement and to use Fact Sheet #13’s longstanding principles and reinstated Opinion Letter FLSA2019-6 instead.
- On February 26, 2026, DOL proposed a new rule to rescind and replace the 2024 rule. Comments closed April 28, 2026. As far as I could confirm on DOL’s rulemaking page, it is still a proposal, not a final rule.
The tax side matters too. If you’re paid on a 1099, you generally owe self-employment tax (Social Security and Medicare) on net earnings of $400 or more, and no one withholds it for you. If you think you were misclassified, the IRS Taxpayer Advocate Service points to Form 8919 to report your share of uncollected Social Security and Medicare tax and Form SS-8 to ask the IRS for a status determination. For how 1099, W-2 contract and direct hire roles compare, see contract vs direct hire.
Per diem, travel time and site time
Per diem. Your overtime rate is based on your “regular rate,” which includes almost all pay for hours worked. Under Fact Sheet #56A, reimbursement for travel and similar expenses can be left out if it covers the actual or reasonably approximate amount of expenses you incur for the employer. Promised, non-discretionary bonuses generally go in. So a reasonable per diem usually doesn’t raise your overtime rate, while a “per diem” that’s really extra pay for hours worked may need to be counted. My construction per diem guide covers the details.
Travel and site time. Per Fact Sheet #22:
- Normal home-to-work commuting is not work time.
- Travel from job site to job site during the workday is work time.
- Overnight travel away from home is work time when it cuts across your normal working hours, including the same hours on non-working days. WHD does not count time as a passenger outside regular working hours.
- Your workday runs from your first principal activity to your last, so it can be longer than the scheduled shift. If you’re required to wait on site and are “engaged to wait,” that time counts.
What I see with Korean construction subcontractors’ offers
Many of my placements are with Korean subcontractors on U.S. plant projects. The offers are usually fair, but a few patterns come up again and again:
- Salaried field roles marked “exempt.” Field engineers, QC inspectors and safety coordinators often get a flat salary. Some of those roles may meet the duties tests. Some lean hands-on. The duties decide it, not the title. If you’ll do manual trade work most of the day, ask how the role was classified.
- Ramp-up hours. During ramp-up and HQ schedule pushes, 60 to 70 hour weeks are common. A salary that looks great at 40 hours looks different at 65. Ask what a normal week looks like in month three, not week one.
- Per diem in place of a raise. A larger per diem can stand in for a higher hourly rate. That may lower your overtime rate. Compare total pay, not just the hourly figure.
- Who is the employer? Between the owner, the general contractor, the subcontractor and a staffing firm, it’s not always clear who issues your W-2. Get it in writing.
- Bilingual terms. If your offer has Korean and English versions, read both and ask which one controls.
For the full list, see my Korean company offer letter checklist. If you’re on the safety track, construction safety manager career covers how those roles are usually paid.
Questions to ask before you accept
- Is this role exempt or non-exempt, and why?
- What day and time does the workweek start?
- What are typical weekly hours during ramp-up, and how is overtime paid?
- Is this a Davis-Bacon or other prevailing wage job? What is my classification?
- Will I be on a W-2 or a 1099, and who is the employer of record?
- How is per diem paid, and is any part of it treated as wages?
- Is travel between sites or from the parking area paid?
Pay stubs, records and filing a WHD complaint
The FLSA requires employers to keep accurate records of hours and pay, but it does not require pay stubs. Many states do. Either way, keep your own log of start and stop times, meal breaks and every paycheck.
If you think you’re underpaid:
- Gather what you have: employer name (or site address and vehicle markings), your hours log and your pay records.
- Call WHD at 1-866-487-9243 (1-866-4-US-WAGE), or see How to File a Complaint.
- On a federal project, you can also raise DBRA issues with the contracting agency.
Per WHD’s worker FAQ, filing is free, complaints are confidential, and WHD enforces the law regardless of immigration status. Employers cannot retaliate against you for complaining or cooperating with an investigation.
FAQ
Do I get overtime for working more than 8 hours in a day?
Not under federal law. The FLSA counts hours over 40 in a workweek. Some states, like California, do require daily overtime.
I’m paid a salary. Can I still get overtime?
Yes, if you don’t meet both the salary level and the duties tests. Job titles don’t decide it, and trade workers like electricians and laborers are not exempt under these rules regardless of pay.
How do I know if my project is Davis-Bacon?
Ask your employer, and look for the wage determination and WH-1321 poster on site. Covered projects are federal or federally assisted construction contracts over $2,000.
Does a 1099 mean I can’t claim overtime?
No. DOL says a 1099 doesn’t make you an independent contractor. Status depends on the economic reality of the work.
Is my per diem part of my overtime rate?
Usually not, if it reasonably matches your actual travel expenses. If it’s really extra pay tied to hours worked, it may need to be included.
General information, not legal or tax advice. State and local laws may give you more protection. Sources: U.S. Department of Labor Wage and Hour Division (Fact Sheets #13, #17A, #22, #23, #56A, #66; elaws DBRA and CWHSSA guides; Form WH-347; FAB 2025-1; 2026 independent contractor NPRM), California DIR (8 CCR 11040), IRS Taxpayer Advocate Service. Checked October 2026.
