Mandatory Overtime

Sometimes referred to as forced overtime, mandatory overtime is when an employer requires employees to work more than their regularly scheduled 40-hour work week. Employers can make the extra hours mandatory and do not need the approval of employees to make it a requirement.

Can Employers Force Employees to Work Mandatory Overtime?

The answer is yes, an employer can force employees to work mandatory overtime. Employers can also terminate an employee for refusal to work the mandated overtime.

The Fair Labor Standards Act (FLSA) is responsible for establishing the 40-hour work week for employees. The law does not place a maximum limit on the number of hours employers can require their employees to work. This is contingent upon an employer adhering to the FLSA law that states, for most jobs, employees will be paid at a rate of time and a half for hours worked beyond the regularly scheduled 40-hour work week. The mandatory overtime must also not create a safety risk for employees.

What Are the Exceptions to Working Overtime?

There are a few exceptions to the Fair Labor Standards Act where employees are not paid time and a half for mandatory overtime. A few examples include computer professionals, seamen, youth counselors responsible for child care, workers on a water-bound craft, and farm or ranch workers.

Another exception where the FLSA law may be restricted is for employees working under a union contract or another type of employment contract. In this case, the employer must adhere to the terms of the collective bargaining agreement. If the employer fails to comply with the agreement regarding mandatory overtime, it is considered a breach of contract, which can subject the employer to a civil suit.

What is the Fair Labor Standards Act (FLSA)?

The Fair Labor Standards Act was passed in 1938. It is the primary law that deals specifically with wage and hour limitations.

The Fair Labor Standards Act:

  • Defines the 40-hour work week.
  • Establishes the federal minimum wage.
  • Places restrictions on child labor.
  • Applies to employers with over $500,000 in annual sales.
  • Applies to employers engaged in interstate commerce.

Can an Employee Refuse to Work Mandatory Overtime?

Under normal circumstances, an employee cannot refuse to work mandatory overtime simply because he or she doesn't want to. Should an employee refuse to comply and not work the mandatory overtime requested by his employer, he may be terminated or subject to discipline.

There are a few instances when terminating an employee who refused to work overtime is deemed an illegal action. These instances include:

  • When the overtime breaches a contract.
  • When working overtime may create a health or safety hazard.
  • When employees are not paid according to federal and state law.
  • Family emergencies that are protected under the Family Medical Leave Act (FMLA).

A state regulation, such as the one in place in California, has limitations on mandatory overtime for employees who have clocked 72 hours, or more, in the previous week.

What Constitutes Discrimination for Non-Exempt Employees Working Overtime?

For non-exempt employees employed in the U.S., employment is considered "at will." This means unless the employee is working under an employment contract, such as a collective bargaining agreement or a union contract, employers can legally terminate an employee without providing a reason.

Under normal circumstance, it is not considered descrimination if employees who are working "at will" are terminated for refusing to work mandatory overtime if the employer is requiring mandatory overtime from all non-exempt employees.

What Are the Exemptions for Mandatory Overtime?

Some exemptions do apply that regulate or prohibit mandatory overtime. These include:

  • Employees working for a company that is not engaged in interstate commerce.
  • Employees with exempt status may not be mandated to work overtime by federal law but may have state laws that regulate overtime.
  • Employers with employees protected by the Rehabilitation Act or the Americans with Disabilities Act (ADA) may be required to modify an employee's scheduled overtime to reasonably accommodate a disability.

What Are the Negative Repercussions from Forced Overtime?

While the immediate benefit to employees required to work mandatory overtime results in an increase in their pay check, there are some negative repercussions.

  • Diminished morale among employees.
  • Resentment of increased workloads.
  • An increase in fatigue and stress among the staff.
  • Employees may quit and take legal action against the employer.

What Alternatives Are in Place for Mandatory Overtime?

Although employers are relying on their current employees as a cost-effective measure to handle the workload through mandatory overtime versus investing in more employees, other positive alternatives are available.

  • Employers have the option of posting available shifts for overtime hours needed and soliciting for volunteers before mandating overtime.
  • Employers can contact a staffing agency for temporary staff.
  • Employers can hire part-time workers to handle the extra work and avoid mandatory overtime.
  • Employers can be aware of potential staffing shortages and address the situation before it becomes a problem requiring mandatory overtime.
  • If passed, employees can take advantage of the Working Families Flexibility Act.

When Is a Lawsuit a Viable Option?

An increasing number of lawsuits are being filed against employers who mandate excessive overtime hours for their employees. This seems to be occurring in the salaried category where employees are considered exempt. Employers are beginning to consider longer hours a normal work day without benefit of overtime pay.

Employers "squeezing" their current staff to handle the workload by requiring mandatory overtime instead of hiring more employees to do the extra work may not work in the employer's favor. They may try this tactic but are not always successful in achieving it due to employees filing law suits.

A recommendation published in the "Extended/Unusual Work Shifts" Safety and Health Guide by the U.S. Occupational Safety and Health Administration (OSHA) recommends employers grant extra meal time and rest breaks when an employee's work shift exceeds eight hours per day. The recommendation is only a guide for employers to follow but has no legal standing.

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