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Navigating wage and hour laws is a critical responsibility for every employer in the United States. Among the most important aspects is the calculation and payment of overtime. The federal Fair Labor Standards Act (FLSA) establishes baseline requirements for overtime pay to compensate employees fairly for long hours worked. Failing to comply with these rules can lead to significant financial penalties, including back wages, damages, and legal fees.
This guide provides employers with a thorough understanding of federal overtime requirements, including how to determine employee eligibility, calculate correct pay rates, and avoid common compliance pitfalls, with specific attention to variations under state laws like California’s.
What is Overtime Pay under the FLSA?
The Fair Labor Standards Act mandates that most employees in the U.S. must receive overtime pay for hours worked beyond a set threshold within a workweek. Unless an employee qualifies for an exemption, they must be paid at a rate of at least one and one-half times (1.5×) their “regular rate of pay” for all hours worked over 40 in a workweek. This is commonly referred to as “time and a half.”
The FLSA sets a floor, not a ceiling. The Act does not limit the number of hours employees aged 16 and older can work in a week, as long as they are properly compensated for overtime hours. Furthermore, the FLSA does not require overtime pay simply for working on weekends, holidays, or regular days of rest, unless the hours worked on those days push the employee over the 40-hour weekly threshold.
Important Update on Salary Thresholds
The Department of Labor (DOL) issued a final rule in April 2024 intended to significantly increase the minimum salary required for certain employees to be exempt from overtime, with phased increases starting July 1, 2024, and January 1, 2025. However, on November 15, 2024, a federal district court in Texas vacated this 2024 rule nationwide.
Consequently, the DOL is currently enforcing the salary thresholds established by the 2019 rule: the standard minimum salary level for the executive, administrative, and professional exemptions remains $684 per week ($35,568 annually), and the total annual compensation threshold for the highly compensated employee exemption remains $107,432 per year. Legal challenges are ongoing, and employers should stay informed about potential future developments.
The Importance of the “Workweek”
The FLSA applies its overtime rules on a workweek basis. A workweek is defined as a fixed and regularly recurring period of 168 consecutive hours – seven consecutive 24-hour periods.
Fixed Period
It must be a consistent 7-day cycle.
No Calendar Alignment Needed
It doesn’t have to be Sunday through Saturday. It can start on any day of the week and at any specific time (e.g., Monday at 9:00 AM to the following Monday at 8:59 AM).
Consistency is Key
Once established, the workweek remains fixed for that employee or group, regardless of their scheduled hours. Changes are permitted only if intended to be permanent and not designed to evade overtime obligations.
No Averaging
Employers cannot average an employee’s hours over two or more workweeks to avoid paying overtime. Each workweek stands alone for calculation purposes. If an employee works 30 hours one week and 50 hours the next, they are owed 10 hours of overtime pay for the second week, even within the same bi-weekly pay period.
Different Workweeks Allowed
Employers can establish different workweeks for different employees or groups of employees.
Establishing a clear, fixed workweek is fundamental for accurate overtime calculation and FLSA compliance.
Exempt vs. Non-Exempt Employees: Who Gets Overtime?
The FLSA’s overtime requirements do not apply universally. Employees are categorized as either “non-exempt” or “exempt”.
Non-Exempt Employees
These employees are covered by the FLSA’s minimum wage and overtime provisions. They must receive overtime pay for hours worked over 40 in a workweek. Non-exempt status is the default under the FLSA.
Exempt Employees
These employees are “exempt” from (not covered by) the FLSA’s overtime (and often minimum wage) requirements. They generally do not receive overtime pay, regardless of how many hours they work.
To qualify for exemption, particularly under the common “white-collar” exemptions (Executive, Administrative, Professional – EAP), employees must generally meet three specific tests:
The Salary Level Test
The employee must be paid a salary of at least $684 per week ($35,568 annually). Note: This threshold reverted to the 2019 level after the 2024 rule was vacated.
The Salary Basis Test
The employee must receive their full predetermined salary for any week in which they perform any work, regardless of the number of hours worked or the quality/quantity of work (with limited exceptions).
The Duties Test
The employee’s primary job duties must meet the specific criteria defined by the DOL for one of the exemption categories.
It is critical to understand that all three tests must be met for an EAP exemption to apply. Job titles alone do not determine exempt status; the actual job duties and compensation structure are what matter. An employee paid a salary is not automatically exempt.
The Salary Basis Test Explained
Being paid on a “salary basis” means an employee regularly receives a predetermined amount of compensation each pay period (weekly or less frequent). This amount cannot be reduced because of variations in the quality or quantity of the work performed. Subject to specific exceptions, an exempt employee must receive their full salary for any week they perform any work.
Permissible Deductions
Deductions from an exempt employee’s guaranteed salary are strictly limited. Making improper deductions can invalidate the salary basis test and destroy the exemption for the period the deductions were taken. Permissible deductions from the predetermined salary include absences of one or more full days for:
- Personal reasons (other than sickness or disability)
- Sickness or disability, if made according to a bona fide plan, policy, or practice of providing compensation for wage loss due to illness (e.g., deducting from a paid sick leave bank)
- Unpaid disciplinary suspensions of one or more full days for infractions of workplace conduct rules, imposed in good faith
- Penalties imposed in good faith for infractions of safety rules of major significance
- To offset amounts received as jury fees, witness fees, or military pay
- Weeks in which the employee takes unpaid leave under the Family and Medical Leave Act (FMLA)
- The initial or terminal week of employment (salary can be prorated for days worked)
Deductions are generally not permitted for partial-day absences or for lack of work if the employee is ready, willing, and able to work.
Using Bonuses to Meet the Salary Level (10% Rule)
Employers may use nondiscretionary bonuses and incentive payments (including commissions) to satisfy up to 10% of the standard salary level ($684/week). These payments must be made on an annual or more frequent basis.
If an employee’s total salary, including these eligible bonuses/incentives, does not meet the required level by year-end, the employer can make one “catch-up” payment within one pay period after the end of the 52-week period to reach the threshold. This catch-up payment counts only toward the prior year’s requirement.
Note: This 10% allowance does not apply to the Highly Compensated Employee total compensation threshold. Some state laws may also prohibit using bonuses to meet state salary requirements.
For more details, see DOL Fact Sheet #17G: Salary Basis Requirement.
The Duties Tests: What Work Qualifies?
The most complex part of classification is determining if an employee’s job duties meet the specific requirements for an exemption. The focus is on the employee’s primary duty, which means the principal, main, major, or most important duty the employee performs.
This assessment considers the character of the job as a whole, the time spent on exempt tasks, and the relative importance of those tasks. Again, actual duties performed matter more than job titles or descriptions.
Here are summaries of the duties tests for common exemptions:
Executive Exemption
- Primary duty is managing the enterprise or a customarily recognized department/subdivision
- Customarily and regularly directs the work of two or more other full-time employees (or their equivalent)
- Has authority to hire or fire, or whose recommendations on hiring, firing, advancement, promotion, or other status changes are given particular weight
Common Error: Assuming all supervisors qualify without ensuring they meet the direction of work and hiring/firing authority requirements.
Administrative Exemption
- Primary duty is performing office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers
- Primary duty includes the exercise of discretion and independent judgment with respect to matters of significance
Common Error: Misapplying this to employees performing routine clerical tasks or following established procedures, who typically lack the required discretion and independent judgment.
Professional Exemption (Learned Professional)
- Primary duty is performing work requiring advanced knowledge (predominantly intellectual, requiring consistent exercise of discretion and judgment)
- The advanced knowledge is in a field of science or learning (e.g., law, medicine, theology, accounting, engineering, architecture, teaching, science, pharmacy)
- The advanced knowledge is customarily acquired by a prolonged course of specialized intellectual instruction
Professional Exemption (Creative Professional)
- Primary duty is performing work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor (e.g., music, writing, acting, graphic arts)
Computer Employee Exemption
Primary duty involves:
- Application of systems analysis techniques and procedures (including consulting with users) to determine hardware, software, or system functional specifications; OR
- Design, development, documentation, analysis, creation, testing, or modification of computer systems or programs based on user/system specifications; OR
- Design, documentation, testing, creation, or modification of computer programs related to machine operating systems; OR
- A combination of these duties requiring the same skill level
Compensation Note: Can be paid salary (≥$684/week) OR hourly (≥$27.63/hour).
Outside Sales Exemption
- Primary duty is making sales (as defined by FLSA) or obtaining orders/contracts for services or facility use
- Customarily and regularly engaged away from the employer’s place(s) of business
Compensation Note: No salary level or salary basis requirement for this exemption.
Highly Compensated Employee (HCE) Exemption
- Performs office or non-manual work
- Paid total annual compensation of $107,432 or more (which must include at least $684 per week paid on a salary or fee basis). Note: The 10% rule for bonuses does not apply here; commissions and non-discretionary bonuses can count towards the total annual compensation beyond the $684/week base
- Customarily and regularly performs at least one of the duties of an exempt executive, administrative, or professional employee. This is a streamlined duties test compared to the standard EAP tests
Table 1: Summary of Key Federal Exemption Duties Tests & Salary Thresholds (as of late 2024)
| Exemption Type | Primary Duty Focus | Key Requirements | Current Minimum Compensation (Federal) |
|---|---|---|---|
| Executive | Management | Directs work of 2+ FTEs; Hire/fire authority or significant input | $684/week salary |
| Administrative | Office/non-manual work related to management or general business operations | Exercises discretion & independent judgment on matters of significance | $684/week salary |
| Learned Prof. | Work requiring advanced knowledge in science/learning | Predominantly intellectual; Requires discretion/judgment; Knowledge from prolonged specialized instruction | $684/week salary or fee basis |
| Creative Prof. | Work requiring invention, imagination, originality, or talent in artistic field | Primary duty requires these creative attributes | $684/week salary or fee basis |
| Computer Employee | Systems analysis, programming, software engineering, etc. | Performs specific computer-related duties listed in regulations | $684/week salary OR $27.63/hour |
| Outside Sales | Making sales or obtaining orders/contracts away from employer’s place of business | Customarily & regularly engaged away from employer’s premises | No salary requirement |
| Highly Compensated | Office/non-manual work | Customarily & regularly performs at least ONE exempt EAP duty | $107,432 total annual compensation, including at least $684/week on salary/fee basis |
For detailed criteria, consult DOL Fact Sheet #17A: Overview of Exemptions and specific fact sheets for each category (FS#17B-Executive, FS#17C-Administrative, FS#17D-Professional, FS#17E-Computer).
Maintaining an employee’s exempt status requires ongoing attention. Because all three tests—Salary Level, Salary Basis, and Duties—must be continuously met, a failure in any one area can jeopardize the exemption for that workweek.
For instance, making an improper deduction could violate the salary basis test, or if an employee’s actual duties shift significantly towards non-exempt tasks, they might fail the duties test. The legal battles surrounding the now-vacated 2024 salary threshold rule underscore the delicate balance regulators and courts attempt to strike between salary levels and job duties in defining who is truly exempt. This highlights that exemption is not a permanent designation but one that requires vigilance to ensure all criteria remain satisfied.
Furthermore, compliance becomes more complex because federal law is only the baseline. Many states have enacted laws setting higher minimum salary thresholds or stricter duties tests than the FLSA. This means employers operating in multiple states, or even just in states with more protective laws like California, cannot rely solely on meeting federal standards. They must be aware of and comply with the requirements of each state in which they have employees, applying the standard (federal or state) that provides greater protection to the employee.
Calculating the “Regular Rate of Pay”: The Basis for Overtime
To correctly calculate overtime pay for non-exempt employees, employers must first determine the employee’s “regular rate of pay” for the workweek. This is not always the same as the employee’s stated hourly wage or salary.
The regular rate is an hourly rate calculated by dividing the employee’s total compensation for employment in a workweek (excluding certain statutory exceptions) by the total number of hours actually worked in that same workweek.
$$ \text{Regular Rate} = \frac{\text{Total Non-Excludable Remuneration in Workweek}}{\text{Total Hours Actually Worked in Workweek}} $$
This calculation must be performed for each workweek individually. The resulting regular rate cannot be less than the applicable minimum wage (federal, state, or local). If it is higher than the minimum wage, overtime must be based on that higher rate.
What Compensation is Included in the Regular Rate?
The FLSA defines the regular rate to include “all remuneration for employment paid to, or on behalf of, the employee,” unless specifically excluded by the Act itself (under Section 7(e)). Common types of compensation that must be included are:
- Hourly Wages: The basic rate paid per hour
- Salaries (for Non-Exempt Employees): The weekly equivalent of the salary paid to non-exempt workers
- Commissions: Payments based on sales or other formulas
- Non-Discretionary Bonuses: Bonuses promised to employees beforehand or paid based on a predetermined formula or criteria. Examples include bonuses for production, quality, accuracy, efficiency, attendance, safety, or retention. If a bonus covers a period longer than one workweek, it must generally be apportioned back across the workweeks it was earned to recalculate the regular rate and any additional overtime due for those weeks
- Piece-Rate Earnings: Pay based on the number of units produced
- Shift Differentials/Premium Pay: Extra pay for working undesirable shifts (e.g., nights, weekends) or performing specific duties
- On-Call Pay: Compensation for time spent on-call, if that time qualifies as “hours worked” under FLSA rules
- Non-Cash Wages: The reasonable cost or fair market value of goods or facilities provided by the employer if considered part of wages (e.g., room and board)
What Compensation is Excluded from the Regular Rate?
The FLSA specifically lists certain types of payments that are not included when calculating the regular rate:
- Discretionary Bonuses: Bonuses where the decision to pay the bonus and the amount of the bonus are determined at the sole discretion of the employer at or near the end of the period, and are not made according to any prior contract, agreement, or promise causing the employee to expect such payments regularly. Labeling a bonus “discretionary” does not make it so if it is actually tied to performance metrics or promised in advance. This distinction is crucial and often misunderstood, leading to calculation errors
- Gifts: Payments made as gifts for special occasions (e.g., holidays, birthdays) or as rewards for service, provided the amount is not linked to hours worked, production, or efficiency. Examples might include small holiday bonuses, raffle prizes, or certain sign-on or longevity bonuses not tied to performance
- Payments for Time Not Worked: Pay for vacation, holidays, sick leave, or other periods when no work is performed
- Expense Reimbursements: Reimbursement for actual expenses incurred on the employer’s behalf (e.g., travel expenses, business supplies, tools, required uniforms)
- Overtime Premiums: The extra “half-time” pay already provided for overtime hours
- “True” Premium Pay: Premium payments (at least 1.5× the regular rate) for work on Saturdays, Sundays, holidays, regular days of rest, or outside the basic workday/workweek established by contract or agreement
- Other Exclusions: Certain stock option profits, contributions to bona fide benefit plans (e.g., retirement, life/health insurance)
Regular Rate Calculation Examples
Calculating the regular rate requires careful attention to these inclusions and exclusions. Here are some common scenarios:
Example 1: Hourly Employee (Wage Only)
An employee earns $20/hour and works 50 hours.
- Total Compensation = $20/hour * 50 hours = $1,000
- Regular Rate = $1,000 / 50 hours = $20/hour
Example 2: Hourly Employee with Non-Discretionary Bonus
An employee earns $12/hour, works 50 hours, and receives a $100 non-discretionary production bonus for that week.
Step 1: Calculate total straight-time compensation.
- ($12/hour * 50 hours) + $100 bonus = $600 + $100 = $700
Step 2: Calculate the regular rate.
- $700 / 50 hours = $14/hour
(Overtime calculation shown in next section).
Note: If a bonus covers multiple weeks, it needs to be allocated back to the weeks it was earned to recalculate the regular rate for each of those weeks. For a $500 year-end bonus earned over 2200 hours (including 200 OT hours), the per-hour bonus amount is $500 / 2200 = $0.23. Additional OT premium due is 0.5 * $0.23 * 200 OT hours = $23.
Example 3: Salaried Non-Exempt Employee (Fixed 40-Hour Schedule)
An employee is paid a salary of $600/week for a standard 40-hour week but works 50 hours.
Step 1: Calculate equivalent hourly rate for straight time.
- $600 salary / 40 hours = $15/hour
Step 2: Calculate total straight-time pay for hours worked.
- $15/hour * 50 hours = $750
Step 3: Calculate the regular rate.
- $750 / 50 hours = $15/hour
(Overtime calculation shown in next section).
Alternative View: Some interpretations divide the salary only by the non-overtime hours ($600 / 40 = $15/hr regular rate) when salary is understood to cover only 40 hours.
Example 4: Employee with Commissions
An employee earns a $1,000 weekly salary plus $500 in commissions and works 50 hours.
Step 1: Calculate total compensation.
- $1,000 salary + $500 commissions = $1,500
Step 2: Calculate the regular rate.
- $1,500 / 50 hours = $30/hour
(Overtime calculation shown in next section).
Example 5: Employee with Multiple Rates of Pay
An employee works 10 hours at $10/hour and 40 hours at $20/hour in the same week (50 total hours). Federal law requires using the weighted average method.
Step 1: Calculate total straight-time pay.
- (10 hours * $10/hour) + (40 hours * $20/hour) = $100 + $800 = $900
Step 2: Calculate the weighted average regular rate.
- $900 / 50 total hours = $18/hour
(Overtime calculation shown in next section).
Example 6: Employee with Shift Differential
An employee earns $15/hour, works 45 hours (30 on evening shift), and gets a $1/hour shift differential for evening hours, plus a $100 non-discretionary bonus.
Step 1: Calculate total compensation.
- Base pay: $15/hour * 45 hours = $675
- Shift differential: $1/hour * 30 evening hours = $30
- Bonus: $100
- Total Comp = $675 + $30 + $100 = $805
Step 2: Calculate the regular rate.
- $805 / 45 hours = $17.89/hour
(Overtime calculation shown in next section).
The regular rate is not static; it must be determined anew each workweek based on the actual compensation received (excluding statutory exclusions) and the actual hours worked during that specific week. This dynamic nature means payroll systems must be capable of handling these variable inputs correctly.
A common and costly error involves misinterpreting the narrow definition of a “discretionary” bonus. If a bonus is tied to performance, attendance, retention, or other metrics, or if it’s promised implicitly or explicitly, it’s likely non-discretionary and must be included in the regular rate calculation, regardless of what the employer calls it. Failing to include such payments leads directly to underpayment of overtime.
Key Resources for Regular Rate Calculation:
- DOL Fact Sheet #56A: Regular Rate of Pay
- DOL Fact Sheet #56C: Bonuses Under the FLSA
- DOL Fact Sheet #23: Overtime Pay Requirements
Calculating the Overtime Premium
Once the correct regular rate of pay for the workweek is determined, calculating the overtime premium is relatively straightforward.
The Standard Overtime Formula
The FLSA requires overtime pay at a rate of not less than one and one-half times (1.5×) the regular rate of pay for every hour worked over 40 in a workweek.
This means for each overtime hour, the employee earns their regular rate (straight time) plus an additional premium of one-half (0.5×) the regular rate.
Total Pay for an Overtime Hour = Regular Rate + (0.5 * Regular Rate) = 1.5 * Regular Rate
Applying the Formula: Examples
Let’s apply this to the regular rate examples from the previous section:
Example 1 (Hourly Only)
Regular Rate = $20/hour, 50 hours worked (10 OT hours).
- Overtime Premium per hour = 0.5 * $20/hour = $10/hour
- Total Overtime Premium Pay = 10 OT hours * $10/hour = $100
- Total Weekly Pay = Total Straight Time + OT Premium = (50 hours * $20/hour) + $100 = $1,000 + $100 = $1,100
- Alternatively: (40 hours * $20/hour) + (10 OT hours * $20/hour * 1.5) = $800 + $300 = $1,100
Example 2 (Hourly + Bonus)
Regular Rate = $14/hour, 50 hours worked (10 OT hours). Total Straight Time Comp = $700.
- Overtime Premium per hour = 0.5 * $14/hour = $7/hour
- Total Overtime Premium Pay = 10 OT hours * $7/hour = $70
- Total Weekly Pay = Total Straight Time Comp + OT Premium = $700 + $70 = $770
Note: The straight time for all 50 hours was already included when calculating the $700 total compensation used to find the regular rate. The overtime calculation adds the extra “half time” premium for the 10 OT hours.
Example 3 (Salaried Non-Exempt)
Regular Rate = $15/hour, 50 hours worked (10 OT hours). Total Straight Time Pay = $750.
- Overtime Premium per hour = 0.5 * $15/hour = $7.50/hour
- Total Overtime Premium Pay = 10 OT hours * $7.50/hour = $75
- Total Weekly Pay = Total Straight Time Pay + OT Premium = $750 + $75 = $825
- Alternative (based on $600 salary for 40 hrs): Regular Rate = $15/hr. Total Pay = $600 salary + (10 OT hours * $15/hr * 0.5) = $600 + $75 = $675. This method assumes salary covers only 40 hrs.
Example 4 (Salary + Commission)
Regular Rate = $30/hour, 50 hours worked (10 OT hours).
- Overtime Premium per hour = 0.5 * $30/hour = $15/hour
- Total Overtime Premium Pay = 10 OT hours * $15/hour = $150
- Total Weekly Pay = Total Straight Time Comp + OT Premium = $1,500 + $150 = $1,650
- Using PA Example Calculation: $1000 salary + $500 commission = $1500. Regular Rate $1500/40 = $37.50. OT Pay = $37.50 * 10 * 1.5 = $562.50. Total Pay = $1500 + $562.50 = $2062.50. Note the different approach in the PA example, dividing by 40 regardless of hours worked. Federal standard typically divides by total hours worked.
Example 5 (Multiple Rates)
Weighted Average Regular Rate = $18/hour, 50 hours worked (10 OT hours). Total Straight Time Pay = $900.
- Overtime Premium per hour = 0.5 * $18/hour = $9/hour
- Total Overtime Premium Pay = 10 OT hours * $9/hour = $90
- Total Weekly Pay = Total Straight Time Pay + OT Premium = $900 + $90 = $990
Example 6 (Shift Differential + Bonus)
Regular Rate = $17.89/hour, 45 hours worked (5 OT hours). Total Straight Time Comp = $805.
- Overtime Premium per hour = 0.5 * $17.89/hour = $8.95/hour (approx.)
- Total Overtime Premium Pay = 5 OT hours * $8.95/hour = $44.75
- Total Weekly Pay = Total Straight Time Comp + OT Premium = $805 + $44.75 = $849.75
Special Case: Fixed Salary for Fixed Schedule > 40 Hours
If a non-exempt employee is hired to work a regular schedule longer than 40 hours for a fixed salary, the calculation differs slightly under federal rules. The salary is understood to cover all hours in the fixed schedule as straight time.
Example: Employee hired for a 45-hour workweek for a salary of $405.
Step 1: Calculate the regular rate by dividing the salary by the total hours the salary is intended to cover.
- Regular Rate = $405 / 45 hours = $9.00/hour
Step 2: Calculate the overtime premium due. Since the salary already covers straight time for all 45 hours, only the additional “half-time” premium is owed for the 5 overtime hours (hours 41-45).
- Overtime Premium = 0.5 * Regular Rate * Overtime Hours
- Overtime Premium = 0.5 * $9.00/hour * 5 hours = $22.50
Step 3: Calculate total weekly pay.
- Total Pay = Fixed Salary + Overtime Premium = $405 + $22.50 = $427.50
Fluctuating Workweek (FWW) Method
The FLSA allows an alternative method for calculating overtime for salaried, non-exempt employees whose hours fluctuate from week to week, known as the Fluctuating Workweek (FWW) method.
Under this method, if specific criteria are met (fixed salary regardless of hours worked, clear mutual understanding, salary sufficient to meet minimum wage for all hours, etc.), the employer can pay overtime premiums at 0.5× the regular rate (instead of 1.5×). This is because the fixed salary is considered to compensate for all hours worked (straight time), even those over 40.
The regular rate itself still changes each week based on the total hours worked (Salary / Total Hours). Recent DOL rules clarified that bonuses, commissions, and hazard pay are compatible with the FWW method but must be included in the regular rate calculation.
Caution: This method has strict requirements, may be complex to administer, and is not permitted or is restricted under some state laws. Employers should consult legal counsel before using FWW. See DOL Fact Sheet #82: Fluctuating Workweek Method.
While the overtime premium formula (1.5× regular rate) is simple, errors often arise from using an incorrectly calculated regular rate as the input. Understanding that the premium represents the additional half-time pay on top of the straight time already accounted for in the regular rate (which is based on all hours worked) is key, especially when dealing with bonuses or salaries intended to cover more than 40 hours. This prevents mistakes like paying only 0.5× the regular rate when the full 1.5× is required, or incorrectly calculating the base for the premium.
Key Resource: DOL Fact Sheet #23: Overtime Pay Requirements provides basic calculation examples.
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