Can a non-exempt worker refuse to work overtime?

Non-exempt employees are paid an hourly wage, as opposed to a salary. A non-exempt employee falls under state and federal wage and hour laws. These laws limit the amount of time an employee can work for regular pay over the course of a day and a week. In general, except in the case of exempt employees, employers can only require 40 hours per week on regular pay. Any additional overtime worked requires additional payment.

Non-Exempt Employee Rights

Employment in the United States for non-exempt employees is employment at will. This means that unless there is actually some contract to the contrary—such as a union or collective bargaining agreement—employers have the freedom to fire staff at any time without being legally required to give a reason. Current federal law makes it illegal for employers to fire employees for certain discriminatory reasons. In other words, as long as the employer is requiring overtime for every non-exempt employee, they are not discriminating.

Can My Employer Force me to Work Overtime?

Simply put, yes. Employers have the freedom to set the terms or conditions of employment, including duties and hours. Since employment is employment-at-will, if an employee does not work the hours the employer requires, he or she can be fired. In order to prevent abuse of employees, wage and hour laws were passed. The main one, the federal Fair Labor Standards Act (FLSA) requires that nonexempt employees must be paid at a 50% higher rate—time-and-a-half, or overtime—for any hours worked in a work week over 40. The employer can require the workers to work overtime; but non-exempt employees have to be compensated at a higher level for the overtime, and this overtime pay helps limit mandatory overtime use. After all, most businesses would prefer to not pay their non-exempt employees more, so the notion is that they will only require overtime when it’s really worth the extra expense.

Refusing Mandatory Overtime

An employee who does not wish to work overtime or who is unable to work overtime should use plenty of tact in explaining the situation to their employer. Remember that employers appreciate the hard work of their non-exempt employees, but they also understand that there are times when circumstances dictate breach of protocol. In addition, there may be legal reasons why an employee should be allowed to skip working overtime. Life events such as family emergencies are examples of reasons that are directly protected under the Family Medical Leave Act. For situations other than emergencies, ask your employer respectfully and if they refuse you may still be responsible for the overtime.