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Forced Overtime – A Matter of Ethics or Legality?

A recent Department of Labor proposal to raise the salary test level from $455 a week, since 2004; to $970 a week in 2016 is a substantial increase. The proposal is likely to cause an estimated 4.6 million exempt employees to become non-exempt workers. Affected companies will have to determine how they will cover the drastic change in overtime cost if the new legislation takes effect later this year.

With the new exemption test requirement, its likely employers won’t be as tempted to request employees to work overtime, especially those grossing over $50,000 a year. Meanwhile, many employers struggle with the FLSA requirements on overtime hours. Under the Fair Labor Standards Act, overtime hours are work hours that exceed 40 for the week. If an employer mandates that your employees work more than those hours, even if they object to doing so, overtime is forced. The FLSA does not limit the number of hours most employees may work, therefore, in many cases, forced overtime is allowed.

If no law or contract says otherwise, you may require that your employees work overtime based on your company’s needs. If a union or employment contract says management cannot force employees to work overtime, overtime cannot be mandatory. Similar to federal law, in many cases, state law does not restrict the number of hours that employers may require employees to work.

Understanding FLSA Restrictions for Minors

Minors under 16 are protected from forced overtime under the FLSA. The hours they are restricted to work depend on whether they are employed in an agricultural or non-agricultural industry, and some other specialized fields. Minors in a non-agricultural field may work three hours on school days, 18 hours on school weeks, 8 hours on non-school days; 40 hours on non-school weeks, and, with limited exceptions, between the hours of 7 a.m. and 7 p.m.

State Limitations

Your state may have child labor provisions. For example, in Texas, the restrictions for minors 14 and 15 years of age are similar to federal law. However, there are no restrictions on the number of hours 16- and 17-year-olds can work per week; under Texas law, these employees can be forced to work a number of hours of overtime per week, as needed. The state of New York limits the number of hours that minors under 18 may work when school is in session. To work between 10 PM and midnight on a day before a school day, 16- and 17-year olds should submit written permission from a parent or guardian and a certificate of satisfactory academic standing from their school. Different hazardous and specific occupations are also protected from excessive overtime requirements. To remain on the safe side of the law, companies are recommended to adopt workplace overtime rules that are more lenient than the federal and state requirements. Employers are encouraged to consult their state labor department for limitations on mandatory overtime in their state.

Exempt Employees

Exempt employees who are excluded from FLSA overtime pay provisions are not entitled to extra pay, if they work more than 40 hours in a week. You may require that these employees work a specific number of hours per week, such as 35 or 40, plus any additional time required based on your company’s needs. You can pay exempt employees additional compensation, such as a bonus or flat sum plus their regular salary. Though you do not have to pay exempt employees overtime for extra hours worked, be careful of requiring excessive and unreasonable overtime that could lead to employees filing a class action suit against the company.

Important Considerations

If you are legally allowed to require forced overtime and an employee refuses to work the hours, you may apply disciplinary measures, including termination. If necessary, consult with an attorney before disciplining your employees or scheduling forced overtime, as there could be an exception to the rule, such as if the employee is temporarily disabled. When considering increased overtime requirements, employee communications, benefits, morale and workplace flexibility issues that will likely result from these changes should be anticipated.

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