Can an Employer Require Overtime?

At Morgan & Morgan, one of the most common questions our employment lawyers hear is, “Can an employer require overtime?” The simple answer to this question is “Yes.” But that doesn’t really answer the myriad of questions that tie into overtime rules. And often, it doesn’t even answer the question that a potential client is trying to ask.

Many people confuse overtime laws with limits on how many hours they are allowed to work. But the two are very different. Overtime laws define how much a person must be paid if they work more than 40 hours a week. These laws don’t define whether a person is permitted to work more than 40 hours a week.

But as noted, while many Morgan and Morgan clients will ask, “Can an employer require overtime?” the real question they are trying to ask is something like:

• Can an employer fire me because I refuse to work overtime?
• Does an employer have to pay me more for overtime work?
• Can an employer require that I work off the clock?
• Are there laws that limit the hours I can work in my profession?
• Can I be required to work extra hours in conflict with my employment contract?

These are the types of important legal questions that a Morgan and Morgan employment attorney can answer for you. If you think your employer is violating overtime laws, use our simple contact form to speak to a knowledgeable attorney and set up a free case evaluation.

You Can Be Fired for Almost Any Reason

Most employment is at-will employment. This means that unless your employment contract specifies otherwise, you can be fired for almost any reason or even for no reason at all.

Thus, you can be fired for refusing to work overtime hours. But this isn’t very meaningful when you can also be fired for just about any reason your boss can dream up due to at-will employment.

Your employer won’t gain much from firing you for refusing to work overtime if they can’t quickly find a replacement employee who is willing to work overtime. So just because you can be fired for refusing to work overtime, you won’t necessarily be fired, especially if you are good at your job. Replacing you would be difficult and time-consuming.

Conversely, you can also be fired if you work overtime without permission. Employers are required to pay 50% higher wages for all hours worked beyond 40 hours in a given week.

If you work more than 40 hours without permission, your employer still has to pay you. To avoid having to spend extra in the future, your employer might fire you after you work overtime without permission. It’s not a common scenario, but it is possible.

If You Work Over 40 Hours in a Week, You Must Be Paid Overtime

There are two types of workers: salary workers and wage workers. Salary workers are mostly exempt from overtime rules but usually have robust protections built into their employment contracts. If you are a salaried worker, your salary usually won’t increase if you work more than 40 hours a week.

But other than that exception, nearly all workers are classified as non-exempt. Non-exempt workers must be paid time and a half for every hour worked beyond 40 hours a week. And no amount of creative accounting can change this — at least not legally.

For example, if you work 50 hours one week and 30 hours the next week, your employer can’t claim you worked 40 hours both weeks. They must pay you for 40 hours of regular work plus 10 hours of overtime in the first week and 30 hours of regular work in the second week.

If your employer tries to avoid paying you for your overtime hours, you can take legal action to get the pay you deserve.

Similarly, an employer can’t require you to work off the clock. If you aren’t getting paid for time, you can’t be required to work during that time. And if an employer tries to force you to work unpaid hours, you can sue to get compensation for that work.

Finally, your employer can’t conveniently “forget” to pay overtime for time worked beyond 40 hours. If your paycheck doesn’t include extra pay for overtime hours, you should speak to an employment attorney immediately. You earned that extra money, and you deserve to get it.

Some Professions Limit Overtime

Certain professions limit the amount of overtime a person can work, both in a week and usually over a 24-hour period. Pilots and truckers are the most common examples.

Federal laws limit how much time pilots and truckers can be required to work in a 24-hour period for safety reasons. These limits can’t be broken for any reason short of an emergency. And a shortage of workers does not count as an emergency.

Some States Have Additional Overtime Rules

Fewer than half of the states have additional limits on overtime. One common additional regulation is that overtime pay kicks in based on hours worked in a day or based on hours worked in a week.

Thus, it is possible that in your state, you might be eligible for overtime if you work more than eight hours in a day, even if you work 40 hours or fewer over the entire week. An employment attorney will help you understand all of the overtime rules that apply to you.

Your Employment Contract May Prevent You From Working Overtime

Many employment contracts dictate what hours you must work and whether you can be required to work overtime. If your employer tries to force you to work overtime hours in conflict with your employment contract, you have the right to sue for breach of contract.

You should keep a copy of your contract available at all times and point out what it says if an employer tries to violate it. It is better for an employer to back down after being informed about what rules they must follow than for you to be forced to sue your employer for breach of contract after the fact.

Ask About Overtime Rules Before Accepting a Job

The best way to ensure that you aren’t required to work overtime hours that you don’t want to work is to speak to your employer about overtime before accepting your job.

You should ask what the overtime policies are at the job and whether mandatory overtime is ever expected. And if it is expected, you should ask what days or hours might be mandated.

If the answers don’t meet your needs, this is the best time to negotiate alternate options. By being honest with a potential employer and explaining when you can and can’t work, you can prevent conflict in the future over overtime demands.

Once you agree to an overtime policy that works for both you and your employer, make sure to have those rules put in writing as part of your employment contract. A written contract helps ensure that your rights aren’t violated when it comes to overtime.

As a rule of thumb, the best time to have these negotiations is after you have been offered the job but before you accept it. If you bring this up before you have received an offer (like during an interview), the employer might decide that it isn’t worth hiring you.

But if you wait until you’ve been offered the job, the employer has probably already ended the hiring process (and turned down other applicants), which means it is much harder for the employer to refuse your demands.