One of the most common questions we receive involves workers who are typically being forced to work overtime hours (“mandatory overtime”) and do not necessarily want to do so. The question usually goes something like this – My boss constantly requires us to stay late and/or come in to work on weekends, most of the time with little advance notice. All of these extra hours are overtime, and my boss says it is mandatory if I want to keep my job. Can I refuse to work over a certain number of hours per week in overtime? If I do refuse to work overtime hours, can I be terminated?
The short answer to the question is Yes and Yes. While an employee technically CAN refuse to work overtime hours scheduled by the employer, they typically do so at their own risk and without any protection under the federal or state labor laws on overtime. In the vast majority of scenarios, a worker who refuses to work his/her assigned schedule (including mandatory overtime hours) can be disciplined or even terminated.
While both the Fair Labor Standards Act (FLSA) and most state labor laws on overtime require that covered, nonexempt employees be paid for their overtime hours at a rate of not less than one and one-half times their regular rate of pay after 40 hours of work in a workweek, they do not typically place any limit on the number of hours in a day or days in a week an employee may be required or scheduled to work, including overtime hours (if the worker is at least 16 years old). Furthermore, employers are free to schedule employees how they choose unless they are violating an employment contract or engaging in unlawful discrimination (race, religion, gender, etc.) and employees must comply with the schedule that is given to them. Most employees may be required to work unlimited hours each day and do not have the legal right to refuse to work overtime, unless they are in one of a few regulated industries or covered by a union agreement which limits work hours. For instance, a number of states (including California, New York, Pennsylvania and Illinois) do limit overtime for nurses, but this is the exception rather than the rule.
So, the bad news is that it is almost never a good option for an employee to outright refuse to work mandatory overtime hours for which they have been scheduled, as they will likely be risking disciplinary action up to and including termination. The good news is that many employers are reasonable human beings that will work with you to accommodate scheduling requests where possible and that federal and state labor laws on overtime force the employer to pay a premium wage to compensate for such a demand on workers’ time that would otherwise be spent with family, resting or doing something recreational.
Having to pay time and a half (or even double time in some instances under CA overtime pay laws) for overtime hours worked serves as a significant disincentive to most employers. Legislators took this into account when passing the labor laws on overtime and specifically wanted to encourage employers to hire more workers, rather than have them force fewer workers to work a greater number of hours each week. Different workers view this economic tradeoff differently; some eagerly seek to work overtime in order to get paid the higher hourly rate while others don’t think the premium is enough to compensate for what they are missing out on. But legally, the only consolation is typically the extra pay, which is why it is very important for workers to know their overtime pay rights. Otherwise, they risk being exploited and deprived of full and proper compensation for their overtime labor.