OVERTIME RULES: WHAT YOUR EMPLOYER CAN AND CANNOT DO

May 20, 2016

Christopher Anderson

The Bottom Line: Your employer must pay you for EVERY minute you work, and pay you TIME AND A HALF for every minute you work OVER 40 hours as long as you are a non-exempt employee. Period.

An employer can:

• Require employees to work more than 40 hours.
• Rule that employees not work over 40 hours.
• Discipline employees for breaking the rule to not work over 40 hours.

An employer cannot:

• Ask employees to clock out and continue working.
• Pressure employees into an unspoken “don’t ask, don’t tell” situation where employees implicitly know they are expected to work more than 40 hours without overtime pay.

If you are non-exempt, work more than 40 hours, and have not been receiving overtime pay, you may have a case and should contact us today.

The Question Explained More Fully

There is a lot of confusion and many misconceptions amongst both employers and employees when it comes to overtime rules. Overtime (according to federal and many states’ laws) is the time a nonexempt employee works over 40 hours in a single workweek. For every hour over 40, that employee must be compensated with 1.5 times his or her normal wage. So, an employee who makes $10 per hour and works 42 hours in a week would be paid $15 per hour for the 2 hours he or she worked over 40. That part is pretty straight-forward. But it’s not the end of the story.

One of the chief causes of employee confusion is when companies institute rules and policies about when and how an employee can work overtime. Which rules are allowed and which ones aren’t?

What They Can Do

First, your employer is allowed to require you to work overtime. There is nothing inherently illegal about setting a schedule where you must work more than 40 hours. This is a common misconception about overtime rules, and some people are under the impression that a 40 hour work week is some sort of legal limit and that working more than 40 hours is a voluntary action.

If your employer says they need you to work 48 hours next week and you punch out at 40 hours, they have every right to write you up or even fire you for not working when you were supposed to.

What They Can’t Do

Your employer cannot require you to work more than 40 hours in a week, and then refuse to pay you time and a half for any time you worked over 40 hours (assuming you’re nonexempt). They have every right to set a schedule that sees you working over 40 hours, but only so long as they properly pay you for the overtime hours you work.

What They Can Do

Your employer also has every right to institute a rule preventing you from working over 40 hours in a single workweek without prior approval. Many employers cannot afford to pay employees time and a half for any amount of hours, and they may tell you that you must work fewer than 40 hours.

For example, it is not uncommon in the food industry to have waiters and waitresses cover shifts for each other when someone is unable to work for some reason. However, if your employer has a policy against working more than 40 hours in a week and you have already worked 40, by your employer’s rule you would not be allowed to fill in for someone who could not make their shift unless you got specific approval from your manager to do so. There is nothing inherently illegal about this overtime policy and an employer who has such a rule is not necessarily cheating you out of wages.

What They Can’t Do

Your employer absolutely cannot require you to clock out at 40 hours but force you to keep working in order to avoid paying time and a half. Some employers may also try to utilize a sort of “don’t ask, don’t tell” unwritten policy of giving you lots of work and expecting you to complete it knowing it will take more than 40 hours, but purposefully not keep track in order to avoid paying overtime. By law, no employer can knowingly accept the benefits of your overtime work without appropriately paying you for the overtime hours.

Even if the employer has a rule against you working more than 40 hours, and you do so anyway, they still must pay you appropriate overtime compensation. They could also discipline you for breaking the rule against working overtime, but they must still pay you for the hours you worked.

Simply put, so long as you are a nonexempt employee, your employer must pay you for EVERY minute you work, and pay you time and a half for every minute you work over 40 hours. Period.

If you believe your employer has failed to properly pay you overtime wages in any way, please call the attorneys at AndersonDodson today for a free, confidential consultation.