In our latest installment of Ask the Expert, brought to you by the team of industry experts at HR Hero®, we look at a recent question from a subscriber regarding an employer’s ability to require workers to work overtime. Let’s hear what our team of HR experts have to say!
Q: Can employees be mandated to work overtime? What is the potential legal recourse if an employee refuses to work overtime that is needed?
A: There is a good bit of confusion and misunderstanding among employees when it comes to certain rules involving work time and pay. For instance, many employees believe that employers are required to give them breaks during the work day or that there’s a maximum number of hours they have to work. The Fair Labor Standards Act (FLSA), the law at issue here, regulates equal pay, child labor, the minimum wage, and overtime, but it doesn’t address many of the areas employees believe it does.
Although there are some exceptions (such as employees who are under the age of 16, who are under collective bargaining agreements, or who may suffer from a disability), the general rule is that employers can require employees to work more than 40 hours a week. Simply put, the FLSA doesn’t address the maximum amount of work hours within a week or a day that an employer can require an employee to work. Employers are therefore free to set the work hours of employees (see 29 U.S.C. § 201).
Assuming there’s no specific exception in the case presented, the employer can require its employees to work additional hours and overtime. If an employee refuses to comply, the employer has the legal right to terminate that employee.
Employers should, however, be cautious of other employment laws that may require breaks and/or set maximum work hours. For example, employers should be careful that any additional hours don’t interfere with an employee’s accommodations for a disability under the ADA, and should be aware that an employee may use FMLA leave in lieu of working required overtime hours if he has the applicable medical certification.
Be sure to treat similar employees in the same manner, and don’t discriminate against certain classifications of employees by requiring only those employees within a protected class to work additional hours or overtime.
In the situation presented, if the number of hours or the schedule is changed for any significant period of time, the employer should provide its employee(s) with 7-days written notice (or more notice if it is feasible) of the change. In addition, an employer should be careful and follow any of its policies that address the overtime situation. This being said, it’s advisable that an employer states in its policies and procedures manuals that employees may occasionally be required to work overtime and/or additional hours and that failure to do so may result in discipline, up to and including immediate termination.
Although the FLSA doesn’t affect an employer’s ability to require an employee to work additional hours or overtime, there may still be state-specific laws that change the answer.
For example, some states, such as California, require overtime pay when employees work more than eight hours in a day. Florida, however, does not and instead follows the overtime rules of the FLSA, or time-and-a-half at an employee’s regular pay rate for all hours worked in excess of 40 in a regular work week. Thus, by way of example, a nonexempt employee who normally works 35 hours a week but is required to work an additional 10 hours in one week will be entitled to an additional 5 hours at his regular pay and 5 hours at time-and-a-half.
Because of the potential for violation of the FLSA and other legal claims, it is recommended to consult with legal counsel on these matters to ensure compliance with all laws and regulations.