Does Overtime Count in an Illinois Workers’ Comp Average Weekly Wage?

By Matthew C. Jones, Illinois Workers’ Compensation Attorney

Sometimes—but not simply because a paycheck calls the hours “overtime.” In Illinois workers’ compensation, the average weekly wage (AWW) is the number used to set important benefit rates, including TTD and many permanent-disability payments. Section 10 of the Illinois Workers’ Compensation Act generally excludes overtime. But courts have recognized that hours paid at an overtime rate may still be included when they were really part of the employee’s regular work schedule: hours the worker was required to work as a condition of employment, or a set number of hours consistently worked each week.

There is no magic number of weeks that automatically makes overtime “regular.” A dispute is often decided by the whole work pattern and the proof: schedules, pay records, texts, union language, crew practice, supervisor instructions, and the worker’s credible explanation of whether leaving was actually an option.

Why the AWW matters so much

The AWW is not a bookkeeping detail. It affects the weekly rate for TTD while you are off work, and it can affect other workers’ compensation benefits. A modest difference in the weekly wage can become a significant difference over months of disability or in a permanent-disability award.

That is why overtime can become a real trial issue. The insurer may calculate using only forty hours, while the injured worker may say that a forty-hour week was not the real job. For a construction worker, truck driver, warehouse employee, nurse, production worker, utility worker, or union tradesperson, the regular expectation may have been to stay until the crew was released, the route was finished, the outage ended, or the project reached a workable stopping point.

The Illinois rule: the label is not the whole answer

Section 10 starts with actual earnings in the employment during the applicable pre-injury period and generally excludes overtime and bonuses. Illinois appellate decisions explain that the overtime excluded is time beyond an employee’s regular weekly hours that the employee was not required to work as a condition of employment and that was not part of a set number of hours consistently worked each week.

In other words, the relevant question is not merely, “Did I work more than eight hours in a day?” or, “Did I receive time-and-a-half?” Different jobs have different normal schedules. The question is whether the extra hours were truly outside the regular job, or whether they were part of the regular work reality.

When qualifying extra hours are used in the AWW calculation, the analysis generally uses the worker’s regular hourly rate for those hours—not an overtime premium layered on top. The calculation is technical, and statutory maximums and minimums can also apply.

There is no set number of weeks that proves overtime is regular

This is the point many people miss. Illinois law does not say that overtime counts after 8 weeks, 13 weeks, 26 weeks, or any other fixed number. A worker can have many weeks of extra time and still lose the issue if the hours were voluntary and highly variable. Conversely, a worker may have a shorter history yet have a strong argument when the evidence shows that the job required a defined extended schedule from the beginning.

In Airborne Express, Inc. v. Illinois Workers’ Compensation Commission, the worker had worked overtime in 31 of 32 weeks, but the court found that the overtime should not be included. The evidence showed he could refuse it, volunteered for the shifts, and worked an irregular number of extra hours. Frequency alone did not transform voluntary, variable overtime into regular work hours.

By contrast, in Ogle v. Industrial Commission, the evidence supported including hours where a union employee was required to work a 48-hour week before he could refuse additional overtime. And in TH Ryan Cartage Co. v. Illinois Workers’ Compensation Commission, the court upheld inclusion of overtime where the Commission credited a driver’s testimony that he was told to work all hours assigned and, when he asked to leave, dispatch said the company was short and he had to stay.

“Nobody said mandatory”—but could you actually leave?

Many real jobs do not come with a written memo saying, “Overtime is mandatory.” That does not end the inquiry. In the TH Ryan case, the employee handbook said workers may be asked to work additional hours, and the union agreement did not expressly say overtime was mandatory. The Commission still credited the worker’s evidence about how the job actually operated.

These are the practical questions I ask:

• Could you refuse extra time without consequences? If the answer was genuinely yes, that helps the employer’s argument. If refusing meant discipline, loss of future work, being sent home, or an immediate confrontation with a foreman, the answer may be different.
• Were you put on the schedule for extra time, or did you ask for it? An employee who signs up for optional weekend shifts has a different case from an employee whose schedule regularly lists ten- or twelve-hour days.
• What happened at the end of the shift? If the whole crew remained on site until the pour was finished, the truck route was complete, the line was shut down, or the project was at a stopping point, could one worker really pack up and leave?
• Did supervisors say “we need you” or “you have to stay”? A direct instruction is helpful, but repeated expected practice can matter too.
• Were the additional hours a stable part of the job? A recurring ten-hour day, a regular Saturday rotation, or an established outage schedule is different from sporadic extra work that changes widely every week.
• What did similarly situated workers do? Crew practice, dispatch records, foreman testimony, and union-contract terms may support or contradict the claimed schedule.

Construction and job-site examples

Suppose a carpenter is scheduled for an eight-hour shift but the crew routinely stays until a concrete pour, lift, shutdown, or punch-list task is finished. If workers are expected to stay with the crew and no one realistically leaves while the work is ongoing, that can be evidence that the extended hours were part of the job—not merely optional overtime.

Now change the facts: the contractor posts an open call for Saturday work; employees put their names down; the worker takes the extra shift whenever he wants the money; and the hours vary sharply. That looks more like voluntary overtime, even if the worker accepted it often.

The answer turns on the proof, not on a label chosen after the injury.

What evidence should you save?

If overtime may matter to your claim, preserve it early. Ask for the complete payroll and time records for the relevant period, not only a few recent stubs. Also keep:

• weekly schedules and job-site sign-in records;
• texts, emails, group messages, or dispatch instructions about staying late;
• union agreements, bid documents, and employer overtime policies;
• notes identifying who assigned extra work and whether refusal was permitted;
• names of co-workers who saw the regular crew practice; and
• records showing whether the hours were scheduled, assigned, volunteered for, or worked to complete a job.

Do not assume the insurer will use the best records or the right method without being asked. AWW disputes often come down to a careful payroll review and testimony about how the workday actually functioned.

Can overtime affect a settlement?

Yes. A higher correct AWW can change the TTD rate, past-due benefits, and the values used in evaluating portions of a workers’ compensation claim. It can also affect the leverage in a case involving extensive time off, surgery, permanent restrictions, wage loss, or a disputed settlement.

For a broader explanation of benefit rates, see how much workers’ compensation pays in Illinois. If your checks stopped or were calculated too low, review our guide to stopped workers’ comp checks, contact us before a rate issue becomes embedded in the case, or visit our main Chicago workers’ compensation lawyers page.

General information only. AWW calculations depend on the statute, payroll evidence, work history, and the facts of the individual claim.