In almost all cases, mandatory forced overtime is legal as long as the employer meets the guidelines of the Fair Labor Standards Act (FLSA). These guidelines include:

  • Paying time and a half for any hours over 40,
  • That the overtime will not endanger the worker, and
  • When overtime breaches a contract, such as a union contract.

This does not mean that forcing overtime is a good idea, however. Employers who force their current employees to work overtime may experience lower morale, employee turnover, and increased risk of employee injury.

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 required overtime.

The Fair Labor Standards Act (FLSA), as formed by the US Department of Labor, 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 that, 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. 

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. 

These 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 or Avoid Mandatory Overtime?

Under normal circumstances, an employee cannot refuse to work mandatory overtime simply because he or she doesn't want to. The best way to avoid mandatory overtime is to have a union contract.

Non-union employees who refuse to comply and work the mandatory overtime requested by the employer may be legally fired 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).

Some state regulations, such as the one in place in California, [place 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 circumstances, it is not considered discrimination if employees who are working "at will" are terminated for refusing to work mandatory overtime, so long as 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:

What Are the Negative Repercussions of Forced Overtime?

While the immediate benefit to employees required to work mandatory overtime results in an increase in their paycheck, 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 attempt legal action against the employer.

What Alternatives Are in Place for Mandatory Overtime?

Employers who rely on their current employers to handle increased workload instead of hiring new employees do have a few alternatives they could entertain.

  • 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.

As you can see, not all overtime is created equal. Mandatory overtime is one option for employers, but trying non-mandatory overtime may be the better approach before requiring all employees to work overtime.

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 and has no legal standing.

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 is occurring largely in the salaried category, where employees are considered exempt. This is a side effect of employers considering longer hours part of a normal workday, without the 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 lawsuits, whether or not those lawsuits are substantiated.

Lawsuits are a viable option for employees if they think they are wrongly being forced to work overtime. These reasons may include:

  • They are not being paid time and a half as mandated
  • Not all employees (except for disabled) are being required to work overtime
  • Working overtime may expose the employee to increased risk of personal harm

Employees may also file a lawsuit they have no chance of winning, as an attempt to get their employer to change their mind. This may backfire on the employees, however, and not cause any change.

If you need help with mandatory overtime laws and are concerned your employer’s rules may not be legal, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.