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Can I Be Fired for Refusing Overtime Work?
For many employees, overtime work is great way to pick up a few extra shifts and may be a financial lifesaver. However, sometimes working the extra hours is not worth the extra cash, and in most cases employees are unable to do to other commitments outside of work. So what can you do if you do not want to work overtime?
In general, under both federal and state law state it is not illegal for an employer to fire an employee for refusing to work overtime. In other words, an employee is permitted to refuse to work overtime, but at the same time, an employer may also terminate you for your refusal.
Of course, wage and hour laws are complicated, and there may be other issues related to overtime work that pop up in the course of your employment. If you are concerned that your employer is treating you unfairly or not paying you adequately, reach out to an Orange County employment lawyer to schedule a free consultation.
Can I Be Forced to Work Overtime?
California is an “at will” state for employment which means that the employer-employee relationship may be terminated by either party at anytime, so long as the reason for the termination is not illegal. The federal Fair Labor Standards Act (FLSA) and the California Labor Code include laws that regulate wage and hour issues for hourly employees. Under the FLSA, there are no limits on how many hours per day or week an employee may be required to work by their employer. Instead, the FLSA simply mandates that you must be paid overtime at a rate of one-and-a-half times your regular rate of pay if you work more than forty hours in a given week. Thus, under the FLSA, it is not illegal for your employer to fire you if you refuse to work overtime.
Similarly in California, employers may discipline or terminate an employee if they refuse to work overtime hours. However, employers may not discipline or terminate an employee who refuses to work for a total of seven days in a workweek, as employees are entitled to a day of rest under California law.
Other exceptions may apply in which it would be illegal for your employer to terminate you for refusing to work additional hours. One item to look at is your employment contract and check whether the contract forbids your employer to require you to work overtime. Second, you may have a claim if your employer has not paid you properly for overtime and you refuse to continue to work until proper payment. Third, an employee may refuse to work overtime if it might create an unhealthy or unsafe work environment.
For Example:
Joe works at a café as a server. During the pandemic, the café has been chronically short-staffed. Joe’s boss has asked him to work 12 hour shifts, 6 days a week, and pays him overtime for these hours. After another server quit, his boss asked him to come in for another 12 hour shift – which would mean working 7 days a week. Joe refused, and as a result was terminated. In this situation, Joe may have a claim against his employer for violating California’s wage and hour laws.
However, if Joe refused to work any overtime at all, telling his boss that he will only work 40 hours a week, then he could legally be terminated. In the alternative, Joe could also choose to work 7 days a week without his employer being penalized so long as this choice is voluntary.
The Bottom Line: In most situations, if you refuse to work overtime, your boss may terminate you, unless a limited exception may apply.
What Overtime Rules Must Be Followed?
If you decide to accept overtime work, then it is important to know what your rights are as an employee. Too often, employers use shady practices to avoid paying for overtime work or to reduce the amount of overtime they have to pay. Knowing the law may help you recognize when you are being cheated – and how to get help.
California law requires employers to pay overtime when an employee works more than eight hours in a workday or forty hours in a workweek. Requiring employees to work more than eight hours a day or forty hours a week is legal, so long as employers meeting the following requirements:
- Time-and-a-half for work over eight hours per day;
- Double-time for any hours worked over twelve in a day;
- Time-and-a-half for the first eight hours worked on the seventh day in a week; and
- Double-time for any hours over eight on the seventh day in a week.
Importantly, overtime work wages must be paid regardless of whether or not it is authorized by your supervisor or required. In other words, even if you do not receive prior approval for overtime, your employer must pay you the overtime rate for the hours you work.
Also, employers may not evade overtime work laws by changing an employee’s timesheets to reduce the amount of time that employee worked in a given week. If they do so, then they may be liable for damages under California’s wage and hour laws.
For Example:
Maisy works as a personal care attendant. She is paid an hourly rate, and has inconsistent hours. Some weeks, she works less than 40 hours, and other weeks, she is asked to work overtime. A few months into her job, she takes a closer look at her paycheck and notices she isn’t being paid overtime for all her overtime hours she has worked.
Maisy then learns that her employer has been shifting her hours around, moving overtime hours to days where she worked fewer than eight hours. As such, Maisy may file a wage and hour claim against her employer for these violations.
If you are having wage and hour issues with your employer, reach out to an experienced Orange County employment lawyer to learn more about your rights as an employee. You can reach us at rob@odelllaw.com, filling out the form below or giving us a call at 949-771-8173
