Making Employees Work Extended Overtime Hours May Be Imprudent and Costly, But Could Be Legal

Everyone knows that exempt employees—those who aren’t eligible for overtime pay such as executives and management—can be made to work 24/7/365.

What about nonexempt employees—those who do earn overtime wages? Can you make them work 9, 10, 12, or more hours in a day?
 

In many states--yes, you can force most adult employees to do just that. You just have to pay them for it (and potentially provide periodic meal or rest periods as required). Child labor laws generally regulate the number of hours children can work per day and workers in some regulated industries (truck drivers and airline pilots for example), may have maximum shift lengths. Collective Bargaining Agreements may also limit the hours unionized employees can be scheduled to work. But for many employees in the private sector, such restrictions on their hours worked do not apply.

Of course, hourly employees must receive their base hourly wage for all hours worked, plus regular overtime pay (time-and-one-half their regular hourly wage) for hours worked over 40 in a work week. In a number of states, additional premium pay may apply. For example, in California, if someone works more than 8, but up to 12, hours in a day, he or she earns daily overtime at time-and-half for hours 9, 10, 11, and 12, and daily double time for any additional hours worked in that day. New York has a “spread of hours” rule, which requires that employees with work days longer than 10 hours (i.e. more than 10 hours from start time to finish time even if there is a long mid-day break) receive an additional hour’s pay at minimum wage. But, that wage requirement, like the California daily overtime pay rule, does not dictate a maximum number of hours employees can work per day or per week.

Federal law, as set out in the Fair Labor Standards Act says nothing about how many hours someone can work in a day or at a time. In fact, under the FLSA, the only limit on how many hours an employee can work in a week is the number of hours in a week. To work an employee more than 168 hours in a week requires breaking the laws of physics, not the FLSA. The result may be different under state law, however. Some states, such as New York, Illinois and Wisconsin, have laws putting a cap on the number of days certain employees can work per week (often called “one-day-rest-in-seven” laws). But, even those laws do not prohibit employers from scheduling long days during the six days those employees work.

In many states, if an employer’s wallet is deep enough, the need great enough, and the employee is not covered by a wage order dictating otherwise for the employee’s position (such as for individuals in certain health care positions, mining or other safety-sensitive positions), or by other regulations, an employee can be required to work all day and night long—as long as the employee is properly compensated under the law (and meal or other rest-break laws are complied with). While it is probably not advisable, it may be permissible.

Keep in mind as well, however that, even if permissible, some states may have laws or regulations making long hour requirements difficult to enforce. For example, in California, employees cannot be disciplined or terminated for refusing to work more than 72 hours in a week—even though the law does not limit the work-week to 72 hours.

Thus, although it may not be prudent to do so, and morale concerns may dictate otherwise, where an employee’s hours are not otherwise limited by applicable regulations or otherwise, an employer can require long work days (and long weeks) so long as the company pays its employees appropriately, under federal and state wage payment law, and provides any required breaks (which generally are not as numerous as most employees believe).

However, if the issue is just “can the company mandate overtime hours?” For the most part, the answer is “yes.”
 

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Comments (14) Read through and enter the discussion with the form at the end
Bermine - October 21, 2011 6:17 PM

Is it legal for an employer to not pay you overtime at all? currently work as a hairstylist but not on salary but hourly wage but no matter how many hours we work per week or pay period no one recieves overtime. Is this legal? If not who do I refer this matter to??

Joel J. Greenwald, Esq. - November 17, 2011 12:54 PM

Although there may be certain exceptions for very small employers, all employers are obligated to comply with overtime regulations that apply to their business. The state or federal Department of Labor enforces those regulations.

Missing Hubby - November 2, 2012 11:09 AM

My husband is an electrician, and currently works 60 hours a week. He was just notified that he will and MUST start working 72 hours per week. We are in Arizona. I understand this is a Right to Work State, but can he be terminated should he refuse to work the amount hours ordered? Can they bark demands like this?

Devora L. Lindeman, Esq. - November 12, 2012 3:14 PM

Generally as long as an employer abides by meal and other break rules, day-of-rest rules, and pays appropriate overtime wages, they can usually require lengthy workweeks. If your husband is concerned, however, he would be best served by contacting on Arizona employment lawyer to discuss his options.

Hector R. Rivera - February 3, 2013 10:12 PM

Hi:

I work in refrigerated storage warehouse, my question is simple; it's legal for the employer to make us work after 12 hrs. of work. Must of my coworkers drive a stand up forklift.

Devora L. Lindeman, Esq. - February 5, 2013 12:50 PM

Your answer depends on the state in which you work. But, it is very possible that it is legal for an employer to require more than 12 hours of work in a day as long as you are paid any overtime wages owed and provided with any break time required by your state.

Michael E. Yeisley - April 8, 2013 3:27 PM

Hello.

I am an hourly wage earner in the state of California, employed in a warehouse. My employer requires us to stay until our work is completed on a daily basis. This means frequent long work hours. I have obligations after my scheduled 8 hour shift. Does my employer have any legal requirement to accomodate them? Furthermore, my job requires me to do a great deal of heavy lifting,(containers weighing 50 lbs. and up.) Is my employer required to take my job requirements into consideration when dictating how many hours I work in any given work day?

Devora L. Lindeman, Esq. - April 17, 2013 9:29 AM

Thank you for your inquiry. Whether an employer has to accommodate after work obligations can depend on the nature of the obligations. In many cases, an employer can legally require employees to work long hours – as long as they are properly compensated, California has many of its own wage and hour laws. If you have concerns, it is best to contact your local Department of Labor or an attorney familiar with the local laws.

Kathy - April 30, 2013 6:26 PM

I am a administrative employee exempt from overtime. I live in New York. My question is...how many hours can my employer legally ask me to work per day, per week, per month? Where can I find some additional legal information on this type of employee where it describes more than FAQ's.

I thank you in advance for your time and assistance.

Devora L. Lindeman, Esq. - May 6, 2013 2:55 PM

Unless you are under 18, there are no limits on how many hours per day an employer can ask you to work in New York. New York does have complicated “one day rest in seven” law, but its application is limited and it is unclear it if would apply to you. If you have exhausted the New York Department of Labor website, I suggest calling a lawyer familiar with this law in New York.

Bradley - May 20, 2013 8:41 PM

In the state of Pennsylvania, is there an hour limit per week or day that a Salary employee can work when they are not eligible for any overtime pay?

Devora L. Lindeman, Esq. - May 23, 2013 9:59 AM

In Pennsylvania, there are no hourly restrictions on employees, whether exempt or non-exempt. It may not be prudent to require extended hours continually, but it is likely legal.

Beth - June 3, 2013 1:31 PM

I live in California. My husband's employer just announced that all the technicians (pest control) must work at least one night a week, even though his normal work hours are during the day. They are supposed to take off early the same day and clock back in at 9:00 p.m. He is paid hourly. Can they require this of him? Can he refuse to work nights without them having grounds to fire him?

Devora L. Lindeman, Esq. - June 20, 2013 9:29 AM

California has many nuanced state-specific wage and hour laws that would determine whether this can be required. We suggest you consult with an employment attorney in your state who can gather all the pertinent facts and then advise you.

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