Can Your Employer Force You to Work Overtime? Yes.
And they can fire you for refusing.
Forced overtime, also called mandatory overtime, is completely legal in the United States. There are very few federal or state protections for employees who don’t want to work overtime.
They can be held against their will at their job under the threat of termination.
Employers are currently experiencing a “shortage of workers.” What that really means is that, for the first time in a long time, people have the upper hand when negotiating salary, PTO, benefits, and other concessions in their employment contracts. No one wants to work for bad bosses.
But instead of raising wages or addressing serious problems like burnout, harassment, wage theft, and COVID risk, employers are doubling down on their remaining workers with forced overtime.
How is overtime regulated in America?
Many U.S. workers are exempt employees, which means they are paid a salary and employers are exempt from paying them overtime pay. There are no legal restrictions on how many hours someone can be forced to work each week.
Overtime comes into play for non-exempt employees and is regulated by the federal Fair Labor Standards Act (FLSA), which hasn’t changed much since 1938 when it was first created.
The FLSA says that if an employer asks a non-exempt employee to work more than 40 hours per week, then they have to pay no less than time and a half of that worker’s regular pay rate for the hours in excess of 40 hours a week.
There is NO limit on the number of hours per day or per week that employees (16 years and up) can be required to work. There is also NO requirement to give employees any advance notice.
Your boss can unexpectedly change your work hours or asks you to work overtime, they don’t need to obtain your consent to do so.
What about legal protections?
When I tried to find out more about legal protections for employees who are being taken advantage of, it was surprisingly disheartening. There really are very few legal protections for workers regarding overtime.
All fifty states operate primarily on the concept of at-will employment. The best protection from forced overtime is to be represented by a union with a prior contractual agreement.
A few other, very specific, protections are in place in some states, though they do nothing to reduce the amount of hours an employee is forced to work. For example, according to California wage order limitations:
Agricultural employers can require employees to work up to 72 hours per work week. After that, it must be voluntary.
Construction, drilling, logging, and mining employers can also require up to 72 hours, unless they deem the situation is an emergency, then they can mandate more hours.
Produce canning, preserving, and freezing employers can also require up to 72 hours a week, with a mandatory 24 hour period off duty after. There are exclusions from this rule though so it’s more of a maybe-mandatory period off duty.
Protections for those with disability are surprisingly lax
The Americans with Disabilities Act (ADA) offers some help, but it’s pretty weak. Essentially, if you are disabled, you can REQUEST that your employer accommodates your needs, IF a medical professional certifies that it’s needed.
But if the employer deems that overtime is an essential requirement of the job function, and accommodations for one employee would cause “undue hardship” on the business, they can deny you and you may have no recourse.
Agriculture workers – one of the least protected groups
There are specialized rules under the FLSA regarding agriculture workers. Employers do NOT have to pay them time and a half of their regular pay rate for hours worked in excess of 40 per week. Some smaller employers are even exempt from paying the minimum wage to workers.
When can you refuse overtime?
In California, you can legally refuse if you have an employment contract that clearly states limitations on overtime work. You can also refuse if the employer has been stiffing you on time and a half rates for overtime hours you’ve completed in the past.
You can also refuse if you believe that overtime work will create a health and safety hazard, but you’ll need to prove that you tried to work it out with the employer before refusing. Finally, you can’t force an employee to work overtime on the seventh day of work in a row.
Is there any legal recourse?
Not much. Workers can take their employers to court and judges MAY decide you have a valid claim that your work situation is problematic. For example, an employee can claim that mandatory overtime is causing stress that results in safety or health issues – like physical illness or a risk of falling asleep on the road while driving to work.
Some professionals have absolutely no recourse available if they’re punished for refusing overtime. And doctors, nurses, policemen, and firefighters are excluded from earning overtime pay completely.
How does this affect unemployment claims?
A tiny sliver of light is that you can, usually, claim unemployment if you quit or are fired for refusing overtime.
Older generations taught that you should avoid being fired at all costs. That’s it's better to quit than have to explain why you were fired when interviewing in the future. Today, your best bet, legally speaking, is to wait to be fired for refusing to work overtime or to engage in dangerous work.
Being fired shouldn’t hamper your unemployment claim success too much because you have the chance to explain your side of the story too.
But if you just can’t take it anymore and quit, you (probably) can claim unemployment if the reason you quit is because of health issues, safety concerns, harassment, significant demotions, or pay cuts. The caveat here – you must prove that you tried to work things out with the employer and were denied before you quit.
In either situation, DOCUMENT YOUR ATTEMPTS TO WORK THINGS OUT WITH YOUR EMPLOYER. Because they will be documenting on their side. Don’t rely on verbal agreements, get everything in writing via a letter, email, or text message.
**CONTACT A LAWYER if you need more answers. I’m not a legal professional and there are likely important legal details that I don’t cover in this article.**
Forced overtime hurts people
At a basic level, productivity drops. No one will be as productive on their 6th day of overtime work as they were on the first day. We’re human beings and we have a limit to how far we can push ourselves physically and mentally.
Though overtime laws should have led employers to hire more workers, they didn’t. Employers are just working their existing employees harder.
Eventually employees quit and the company has a high employee turnover rate because it’s unbearable to work there. Ask about this when you’re interviewing and before you accept an offer.
On a more complex level, the physical and mental abuse from forced labor can ruin people's lives. Stress and burnout quickly lead to poor morale, which then leads to a lack of hope and depression. The toll taken on our psyches when all we can see is endless work until we die is criminal.
What are workers with families supposed to do when they are forced to work overtime? What should people do when they care for an elderly or ill relative? Someone needs to be there for your kids and relatives and they must be paid for their time. Your money is going out just as overtime pay comes into your bank account.
Often, single employees with no spouse or children are treated like their lives have nothing of value outside of the job. They don’t have the same responsibilities so why shouldn’t they work overtime? A year can go by before we realize that all we do is work and sleep. We don’t see our friends, have hobbies, exercise, or have a moment to rest.
Eventually you have to wonder if your employer even sees you as a human being at all.
What can we do to change this?
As with any change that benefits workers and slightly disadvantages employers, it’s going to take a lot of work. It won’t happen quickly. But if the most “progressive” states, like California, aren’t protecting their workers from forced labor, then perhaps starting at the state level might be best.
Register to vote in your state. Find out where your representatives stand on worker rights. Demand better from them.
Overtime rules are just one facet of the problems we’re seeing with employment in America. These are real problems.
Don’t let anyone make you feel like you should just be grateful to have a job, especially when your job is bad for your health. You’re a human being, and deserve to be treated with respect and dignity at your job.