When an injury pulls you off the job, one of the first questions after the dust settles is, “What will my workers’ comp check look like?” If you usually work long hours or lots of weekends, the question gets sharper: “Do they count my overtime?” Getting this right is not trivia. I have seen a miscalculated average weekly wage shortchange a family by hundreds of dollars every week, sometimes for months. Correcting it can mean mortgage paid on time, groceries without a credit card, and breathing room while you heal.
This guide walks through how overtime fits into workers’ compensation, what adjusters do right and wrong, and how a Workers’ Compensation Lawyer spots and fixes errors. Laws vary by state, and specific terms can have technical meanings, but the themes are consistent enough that you can see what to look for and when to call a Work Injury Lawyer for help.
The core concept: average weekly wage and your comp rate
Workers’ Compensation benefits generally start with your average weekly wage. That number feeds the temporary disability rate, which is usually two-thirds of your average weekly wage, subject to state-specific minimums and maximums. If your wage is wrong, everything downstream is off.
Most states calculate average weekly wage using a look-back period, often 13 weeks before the injury, sometimes 26, 52, or a full calendar year. In many places, the law is flexible: if your schedule is irregular, they can use a method that reasonably reflects your true earnings at the time of injury. The result should be a fair snapshot of what you actually earned, including regular overtime that was part of your normal pattern.
Here’s the pivot: regular, recurring overtime usually counts in average weekly wage. Sporadic, occasional overtime may not. The line between “regular” and “sporadic” depends on the state and the facts. If you are a warehouse lead who clocks 10 extra hours nearly every week to cover late trucks, that overtime is probably in. If you stayed late twice during the holidays, it likely isn’t.
Legal backdrop: overtime is not a bonus
There is a common misconception that overtime is a discretionary perk like a quarterly bonus. Not true. If you earned those hours and were paid for them, they are wages. If you routinely worked them, they are part of your wage pattern. Many statutes and cases say as much. The nuance lies in which overtime hours are counted and how they are converted into the weekly figure.
Expect the adjuster to default to payroll numbers. That is fine as a starting point, but payroll reports can hide the nuance. I have pulled biweekly pay stubs where base hours appear on one line and overtime on another, with shift differentials mixed in and paid time off sitting in a separate bucket. If the adjuster only averages base hours, your check drops. If the adjuster averages overtime at the premium rate without normalizing for hours, your check can be off in the other direction. The task is to capture the real average of earnings, not just the base rate.
The two components: rate times hours
Average weekly wage is not simply your base hourly rate times 40. It is the average of your earnings over the look-back, divided by the number of weeks in that period. Earnings include:
- Base hourly wages, plus recurring overtime premiums and differentials, and sometimes other wage-like items depending on state law. Employer-paid items that function like wages in certain jurisdictions, such as per-diem that is effectively wages, or housing allowances that replace cash.
Paid time off can be a wrinkle. Some states include PTO because it is wages you actually received. Others exclude it if it does not reflect current earning capacity. Holiday pay follows similar logic. A Workers’ Compensation Lawyer will pull the statutory language and recent decisions to see what your state does.
How overtime hours are counted
There are two common approaches in practice:
One approach averages total gross wages, including overtime premiums, then divides by weeks worked. This method inherently captures the premium. If you worked 50 hours at time-and-a-half 8 out of the last 13 weeks, your gross wages already reflect that, and the average weekly wage will float up accordingly.
Another approach, more common where regulations focus on “regular earnings” at the time of injury, starts by averaging hours. The adjuster computes your average weekly hours over the look-back, then multiplies by your base rate, then adds a calculated component for recurring premiums. This method can reduce noise from odd spikes but, if done sloppily, trims legitimate wage value.
Where states draw the line differs. In several jurisdictions, courts favor using gross earnings because it captures reality without cherry-picking hours. In a few, statutes instruct adjusters to use contract rate and normal schedule. If overtime is built into the normal schedule, it belongs in the calculation.
What counts as regular overtime
Patterns matter. I look for consistent extra hours over a meaningful run-up to the injury. Three signs point toward regular overtime:
- A stable schedule with predictable overtime blocks, like four 12-hour shifts or a 6-day rotation. Repetitive overtime that tracks business rhythm, like Friday closers in a retail store or monthly inventory in manufacturing. Written expectations, formal or informal, that employees cover longer shifts or extra days.
On the other hand, one-off projects, storm response, or holiday peaks can be treated as sporadic by adjusters, especially if they are not representative of your usual earning pattern.
Edge cases arise. Consider a food processing plant where summer harvest drives 10 to 20 overtime hours weekly. If you were hurt in July, is that overtime “regular”? In agricultural states, that seasonal pattern often counts because it is the normal rhythm of the industry. If you were hurt in February, the time period chosen for the average can tilt the outcome. A Work Injury Lawyer will argue for a timeframe that fairly reflects your true earning capacity at the time of injury, not a cherry-picked low or high.
Real numbers: how differences add up
Imagine an electrician whose base rate is 28 dollars per hour. For 10 of the last 13 weeks, she logged about 8 overtime hours weekly at 1.5 times the base rate. Her weekly pay during those 10 weeks was roughly 40 hours at 28 dollars plus 8 hours at 42 dollars, or 1,120 plus 336, totaling 1,456 dollars. During the other 3 weeks, she worked only 40 hours, totaling 1,120 dollars. Over 13 weeks, her gross is 10 times 1,456 plus 3 times 1,120, equaling 17,600 dollars. Divide by 13, and her average weekly wage is about 1,354 dollars. Two-thirds puts the disability rate around 903 dollars, before statutory caps.
If the adjuster ignores overtime and uses 40 hours, the average weekly wage is 1,120 dollars, and the two-thirds rate is about 747 dollars. That is a 156 dollar weekly difference, more than 600 dollars a month. Over a six-month recovery, you can see the stakes.
What about fluctuating workweeks
Some workers have unpredictable schedules. Restaurants, hospitals, gig logistics, and construction can swing wildly. In those cases, I gather a longer sample, 26 or 52 weeks, and compute both the short-term and long-term averages. If the trend shows an upward pattern, and the injury date is during a sustained high-demand phase, the short-term 13-week average may be fairer. If the recent spike is temporary, or the injury happened right after a rare overtime binge, the longer average can be the truer reflection.
Courts often allow flexibility here, with one guiding principle: the method should reflect what the employee would have earned but for the injury. If your spring schedule always jumps because that is how your industry works, a spring injury should not be averaged using a winter lull unless the statute forces it.
Salaried employees and overtime
Salaried workers can receive overtime in two ways. Some are properly classified exempt under wage and hour law and do not receive overtime. Others are salaried non-exempt and get overtime when they cross the weekly threshold. In a comp calculation, if you are salaried exempt, overtime usually is not an issue unless you are paid incentive pay or differentials that function like hours-based wages. For salaried non-exempt employees who routinely work over 40, the overtime component belongs in the average if it is regular. We convert salary to a weekly rate, then add the average overtime premium based on recent history.
I once handled a case for a salaried lab supervisor who was nominally exempt but, in practice, was paid extra for weekend coverage. The employer coded it as a “stipend,” but the stipend correlated directly with extra hours worked. We argued, successfully, that it should be included in the average weekly wage. The label did not control the substance.
Shift differentials and hazard pay
Night shift premiums, weekend differentials, and hazard pay operate like wage multipliers. If you consistently worked nights with a 2 dollar differential, that differential is part of your wage. If you bounced between day and night shifts unpredictably, we average the differential just like overtime. Hazard pay may be seasonal or event-driven. The same pattern analysis applies.
Bonuses, commissions, and per diem
Commissions often count if they are nondiscretionary and regularly earned. The classic territory sales rep has quarterly commission that varies but represents a core part of pay. Most states require that to be included, averaged over an appropriate period. Discretionary bonuses, gifts, or profit-sharing may be excluded unless state law says otherwise.
Per diem can be tricky. A true reimbursement for meals and travel is not wages. But when a per diem is paid regardless of travel, or substitutes for hourly increases, some jurisdictions treat it as wages. A Workers’ Compensation Lawyer will dig into how the employer structures it and how tax forms reflect it. If per diem is taxed like wages or functions as part of base compensation, there is a strong argument to include it.
Union agreements and minimum guarantees
Collective bargaining agreements sometimes set standard workweeks above 40 or embed overtime into schedules. If your CBA says your regular workweek is 48 hours with 8 hours at premium rate, that structure is integral. The comp calculation should not pretend you are a 40-hour worker. I look at the agreement, denote the regular cycle, and compute a blended rate that reflects reality.
Temporary and part-time workers
Staffing agencies create another wrinkle. If you are placed at multiple sites with different rates and shifts, the average must capture the blended reality. I gather a comprehensive pay history, including all placements and overtime premiums. Some adjusters try to use the rate and schedule of the last placement only, which can understate a worker’s typical hours.
For truly part-time workers, overtime may be rare. If it exists and is regular, include it. If not, do not pad the wage with a few busy weeks from months ago. Fairness cuts both ways.
Waiting week quirks and caps
Many states have a waiting period before wage loss benefits start, such as the first 3 to 7 days. If the disability lasts beyond a certain duration, those initial days may be paid retroactively. Minimum and maximum weekly benefit caps also apply. A high earner with lots of overtime may hit the cap, so the overtime does not increase the check beyond that maximum. Still, accurate average weekly wage matters because it can affect other benefits, including permanent partial disability in some states.
Medical work restrictions and partial disability
Return-to-work programs complicate the math. Let’s say your doctor puts you on light duty, 30 hours per week, no lifting over 20 pounds. Your employer offers modified duty at 20 dollars per hour instead of your usual 25. You are working fewer hours and at a lower rate, and you no longer book overtime. Many states pay a partial benefit equal to a percentage of the difference between your pre-injury average weekly wage and your post-injury earnings. If overtime was part of the pre-injury wage, your partial benefit should reflect that. A skinny pre-injury wage number punishes you twice: lower initial rate, and a smaller partial benefit.
Documentation that persuades
To nail down overtime, I gather:
- Full pay records for at least 13 weeks pre-injury, and longer if schedules fluctuate, plus any payroll summaries that break out base hours, overtime hours, premiums, and differentials. Schedules, timecards, or clock-in data to show patterns, along with supervisor emails or texts that confirm expected overtime or rotation norms.
These documents tell the story better than general statements. When you can show that you worked 8 to 12 overtime hours for 9 of the last 12 weeks, you shift the conversation from opinion to arithmetic.
Common mistakes made by adjusters and employers
One common mistake is averaging only base hours. Another is using too short a timeframe that cherry-picks a lull. I have also seen employers apply a 40-hour cap even when the statute calls for true average earnings. A few forget shift differentials entirely or treat them as “premium” that should be stripped out, which is wrong when the differential is a baked-in part of the job.
On the flip side, I occasionally see injured workers assume that any overtime they ever worked must be included. If you logged two heavy overtime weeks six months before the injury, and nothing since, those weeks probably should not drive the number. The test is what fairly reflects your earning pattern at injury time, not the best or worst stretch you can find.
Special roles: firefighters, medics, police, nurses
First responders and hospital staff often work 24-hour shifts or 12-hour blocks with mandatory overtime built into the schedule. Several states have specific rules for the 207(k) work period applicable to public safety under federal wage law, which can bleed into comp practices. For these roles, we scrutinize:
- The defined work period and standard hours. Built-in overtime or Kelly days. Night or weekend premiums.
The correct method often uses a standardized formula based on contract or policy, then layers in consistent premiums. Get this wrong, and the error can be large, especially when the statutory cap is high enough that overtime still matters.
Seasonal industries and variable cycles
Construction, agriculture, education support staff, and tourism run on cycles. If the injury happens in the busy season, and the statute allows an alternative calculation, use a period that captures that season’s typical load. Courts tend to favor realism if the statute gives them room. A landscaper injured in May should not be treated as a January landscaper if the employer’s ledger shows 55-hour weeks every spring for years.
Independent contractors and the gray zone
Independent contractor status complicates everything. True contractors fall outside workers’ comp. But many “contractors” are misclassified employees. When we challenge classification and win, we need to compute average weekly wage without standard payroll. Bank deposits, 1099s, invoices, and even calendar logs become evidence. Overtime as a legal concept may not apply, but the average weekly wage still needs to reflect actual earnings capacity. In practice, we average gross pay and subtract legitimate business expenses to find a reasonable weekly figure. A Worker Injury Lawyer familiar with wage-and-hour overlap can help here.
When the premium rate matters
Some adjusters try to back overtime out by counting extra hours at the base rate only. That can underpay workers when the standard practice is to calculate average weekly wage using gross earnings. In jurisdictions that prefer gross earnings, the 1.5 multiplier is already baked in, so no further adjustment is needed. If your state uses an hours-based approach, you still may be entitled to include the premium portion of regular overtime. The controlling statute or case law decides. This is where a Workers’ Compensation Lawyer earns their fee, because the answer is state-specific and fact-driven.
Tax treatment versus comp treatment
Workers’ comp wage loss benefits are usually not taxed, which makes a two-thirds benefit closer to take-home pay than it sounds. The overtime you earned pre-injury was taxed, so be careful when you mentally compare net to gross. Still, if the average weekly wage ignores regular overtime, the check is too small even after considering taxes. The comparison that matters is consistency: compare comp benefits, which are untaxed, to your net take-home from normal weeks including your usual overtime. A good Workers Compensation Lawyer will run both sets of numbers with you.
How to challenge a bad calculation
If you suspect your check is low, act quickly. Ask the adjuster for the wage statement and the documents used. If the system allows, file a request for a wage conference or a hearing. In many states, you can correct the wage at any point, but the earlier you fix it, the more money you recover promptly. Retroactive corrections are possible, though they can take time.
When I contest a wage, I prepare a concise packet: pay stubs, a spreadsheet showing week-by-week earnings and hours, a short narrative of typical schedule, and citations to the state rule. Most disputes settle once the math is clear. When they do not, a judge will decide, and judges usually prefer clean arithmetic rooted in the statute.
Practical questions I hear often
Do they average overtime even if I only worked it in the last month? If the last month reflects a new, stable schedule, yes, you have a case. If it was a rare project, probably not.
What if I was about to start a new schedule with guaranteed overtime? Future changes that were definite and imminent can sometimes be considered. A signed offer letter or posted schedule helps. Without documentation, it is a hard sell.
What if I held a second job with overtime? Second jobs can count in many states if they are concurrent Work Injury Lawyer employment at the time of injury, especially when the injury prevents both jobs. Bring proof of those earnings. Not every state includes concurrent wages, so check local law.
Will my overtime history matter if I am now on restricted duty? Yes. Partial disability benefits often depend on the gap between your pre-injury average weekly wage and your restricted-duty earnings. Understating the pre-injury wage depresses partial benefits.
How far back should we go for commissions or bonuses? I typically use 52 weeks for commissions to smooth out volatility, unless the state specifies a period. The goal is fairness, not cherry-picking.
The human side of the numbers
A machine can average your pay, but it cannot tell your story. I once represented a night-shift CNA who picked up two extra four-hour blocks almost every week to cover facility short staffing. Payroll labeled it “overtime” when the first 40 were covered and “shift differential” when not. The adjuster averaged only the base 40 hours. Her first check was 218 dollars short per week. We reconstructed her hours using a year of time punches and created a simple chart. The insurer corrected the wage, paid arrears in a lump sum, and she kept her apartment. The story was not about legalese. It was about showing the pattern that everyone at the facility already knew.
Why a lawyer’s judgment matters
You can do much of the groundwork yourself. Gather stubs. Chart hours. Identify patterns. But the value of an experienced Workers’ Compensation Lawyer is in knowing which calculation method your state favors, how to frame seasonality, when to include differentials, and how to present the case in a way that makes the right number feel inevitable. We see the traps: misapplied caps, wrong averaging period, ignored concurrent jobs, mislabeled “stipends,” and “per diem” that behaves like wages.
If you are nursing a Worker Injury and your check seems thin, do not wait and hope it fixes itself. Ask for the wage basis in writing. Compare it to your actual earnings. If it misses overtime that was part of your usual load, push back. A short consultation with a Work Injury Lawyer can often pay for itself in a single corrected check.
A short checklist for workers and families
- Collect 13 to 52 weeks of pay stubs showing base, overtime, and differentials, plus any commission statements. Ask the adjuster for the wage calculation worksheet and the legal method used. Chart weekly totals and identify consistent overtime or premiums. Note seasonal patterns or schedule changes that became regular before the injury. If the numbers diverge, contact a Workers Compensation Lawyer to pursue correction and back pay.
Final thought
Workers’ Compensation is supposed to be simple and predictable. Real life complicates it with swing shifts, overtime rotations, and seasonal crushes. The law’s answer is fairness grounded in facts. If overtime was part of your normal earnings, it should be part of your average weekly wage. Do the math carefully, tell the story clearly, and insist on a number that reflects the work you actually did.