Can You Be Forced to Work Overtime? Is it Legal?
Know your options with overtime work
on June 28, 2022
Updated on June 29, 2022
Being forced to work extra hours can strain your work-life balance significantly, interfering with personal or family plans.
When an employer tells an employee to work overtime, the “employee may have to tell their boss, for example, ‘I’m going to get in trouble with the school if I don’t pick my kid up,’” says California employment attorney Eric Kingsley. “One can understand the employer’s perspective that you have to get the work done, but you also have to be sensitive to employees’ work schedules.”
If your employer has asked you to work overtime, you may be wondering if you can refuse. Can your employer fire you for refusing? Are there any other consequences?
This article will cover the main requirements for overtime and help point you to legal help if you think your employee rights have been violated.
What is Overtime?
The Fair Labor Standards Act (FLSA) is a federal law that sets the minimum for full-time work at 40 hours per week. Anything over this 40-hour minimum is considered overtime.
There are a couple of important things to know about the 40-hour threshold:
- It’s a minimum, not a maximum. There is no legal cap on the number of hours employees can work each week.
- Overtime is calculated by the number of hours per week, not per workday. So, if you work 45 hours in a week, you have worked five hours overtime. But if you work 12 hours one day, that doesn’t count as overtime.
Can Your Employer Force You to Work Overtime?
For most employees in the United States, the answer to this question is probably “yes.”
This is because the vast majority of private-sector employees in the United States work at will. At-will employment means employers can change an employee’s working conditions or even fire them at any time and for any reason that doesn’t violate federal or state law.
So, if you are an at-will employee, your boss can require you to work overtime and be within their rights to fire you for refusing as long as they don’t violate specific laws.
However, there are laws and, in some cases, company policies that employers must follow when requiring overtime.
The Fair Labor Standards Act: What It Does and Doesn’t Do for Overtime
The Fair Labor Standards Act (FLSA) sets basic requirements for both minimum wage and overtime pay:
- Employers must pay employees either the federal minimum wage (currently $7.25 an hour) or their state’s higher minimum wage rate if there is one.
- Employers must pay employees 1.5 times their regular rate of pay for every hour of overtime they work per week. Overtime is anything over 40 hours of work per week. For example, if your hourly rate is typically $10 an hour and you work 45 hours in a workweek, your employer has to pay you the overtime rate of $15 an hour (1.5 times regular pay) for those five overtime hours.
So, the FLSA requires employers to pay a higher overtime rate.
However, the FLSA does not prohibit employers from requiring you to work overtime, nor does it prohibit employers from firing you if you refuse.
Does the FLSA Apply to You?
The FLSA’s rules only apply to “non-exempt employees”—employees who are not exempt from the FLSA’s minimum wage and overtime wage rules.
Non-exempt employees get paid hourly instead of on a fixed salary. Examples include retail workers, contractors, and freelancers.
If you are a non-exempt employee, you have minimum wage and overtime pay protections. But the FLSA does not protect you from having to work overtime.
Some employees are exempt from the FLSA’s protections. For example, executive, administrative, or professional employees are exempt from both minimum wage and overtime rules if:
- They are paid on a salary basis
- As of January 1, 2020, they are paid at least $684 per workweek
- They perform managerial, administrative, or intellectual tasks
The salary requirement means exempt employees get paid a fixed rate regardless of the hours they work.
Many salaried employees work over 40 hours per week but cannot be paid overtime due to their salary basis.
Healthy and Safety Risks
The Occupational Safety and Health Administration requires employers to provide a safe work environment for their employees.
As we saw, the FLSA does not put a cap on the number of hours employees can work each week. It just requires non-exempt employees to be paid overtime wages for work over 4o hours per week.
Even though there is no set maximum, extremely long work hours can cause employees illness or injury. This can be especially true in manual work. “Under federal law, the Department of Transportation limits hours of service for truck drivers because they don’t want them falling asleep at the wheel,” Kingsley says.
Employers should be mindful of the strain they put on employees by requiring long work hours. If an employee gets sick or injured in the course of work, they can file a workers’ compensation claim.
Exceptions to At-Will Employment
If employed under a contract, the contract may set overtime requirements or specify how many hours you are required to work. Your employer is required to follow the provisions of the contract.
If your employer violates the contract’s terms, you may have a breach of contract claim. If the employer violates the contract’s terms and then fires you for not complying with their demands, you may also have a wrongful termination claim.
If you are unsure if you have a contract or what the contract says, a wage and hour attorney can help you understand its provisions and discuss possible strategies.
Understand Your Company’s Overtime Policies
It is always a good idea to familiarize yourself with your company’s policies and ensure your supervisors are following the rules.
Look at your employer handbook or speak with a human resources representative if you have questions about company policies on overtime requirements.
It’s also worth noting that if you have conflicts preventing you from working overtime, you can discuss these with your supervisor or other people in management.
If you explain your situation and why you can’t work overtime, people in management may be understanding. You may not be stuck with the options of complying or being fired. You may be able to reach a compromise with your employer.
In addition to federal laws governing overtime pay, some states have additional requirements.
For example, California law limits the amount of overtime that some employees can work and requires employers to pay double-time to employees who work more than 12 hours in a workday.
Other states have laws on overtime in specific industries, such as healthcare, or set overtime requirements depending on how many employees a company has.
Since some state labor laws provide more protection than federal law, it is a good idea to check your state’s rules on overtime. An experienced wage and hour attorney can help you understand your state’s overtime hour laws and requirements.
When is Firing Illegal?
It’s important to realize that even as an at-will employee, there are cases when it is illegal for your boss to fire you. The two main unlawful reasons are discrimination and retaliation.
Federal laws, including Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA), prohibit employment discrimination because of race, color, religion, gender identity, sexual orientation, pregnancy, national origin, disability, age, or genetic information. These laws also require employers to make reasonable accommodations for employees in one of these categories.
The ADA protects individuals with disabilities from forced overtime but also allows them to work some overtime if they wish, depending on the circumstances.
It is also illegal for employers to fire employees in retaliation for:
- Reporting illegal workplace activity, such as sexual harassment
- Filing a workers’ compensation claim
- Taking covered medical leave
So, an employer can fire at-will employees for not working required overtime. If the real reason for firing an employee is discriminatory or retaliation, it is illegal, and the employee would have a claim.
If you think your employer discriminated or retaliated against you, consider contacting an employment or wage and hour lawyer for further guidance.
Questions for an Attorney
Suppose your employer has violated federal or state overtime laws or taken other illegal action against you. In that case, you may be wondering what your legal options are.
The good news is that many attorneys provide free initial consultations to prospective clients. These consultations allow the attorney to hear the facts of your case and for you to determine if the attorney meets your needs.
To see whether an attorney is a good fit, ask informed questions such as:
- What are your attorney fees, and what billing options do you offer?
- What is your experience as an employment lawyer?
- What are my state’s overtime laws?
- What kind of damages could I get in my case?
- What are the chances of a settlement in my case?
Finding the Right Attorney for Your Needs
It is essential to approach the right type of attorney—someone who can give you legal help through your entire case. You can visit the Super Lawyers directory and use the search box to find a lawyer based on your legal issue or location.
If you think your employer forced you to work overtime illegally, consider looking for a wage and hour attorney.