Can a non-exempt worker refuse to work overtime?

Non-exempt employees are not exempt from overtime—that is, they are eligible to receive overtime when they work more than 40 hours in a week. (Certain states, like California, also provide for overtime under other circumstances; so you should always check your state’s law or contact your state Department of Labor for more information.) 

Most non-exempt employees are paid an hourly wage, though there are also some salaried staff who are non-exempt, too.  When salaried employees are and are not exempt from overtime is a later discussion, but if a salaried worker earns less than $455/week, or has very little discretion or authority, or doesn’t do anything requiring an advanced degree or professional training, he or she may be non-exempt, too. 

A non-exempt employee falls under state and federal wage and hour laws which 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 time worked beyond 40 hours per week requires additional pay, called overtime.

Non-Exempt Employee Rights

Employment in the United States is employment at will unless the employee has a written employment contract which in some way guarantees his or her employment or limits the grounds for discipline or termination. 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 employees at any time for any reason, without any warning, notice, or chance to correct problematic behavior. While federal law makes it illegal for employers to fire employees for a certain few discriminatory reasons (race, color, national origin, sex, age 40 or over, disability, religion), that only means that an employer can’t single out, for example, minority employees to work overtime while not requiring it of other employees. As long as the employer is even-handed in requiring overtime for non-exempt employees, 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. This is a corollary or consequence of employment at will, since if an employer has the power to terminate employees at will, they also have the power to tell those employees what to do and when to work. Since employment is employment-at-will, if an employee does not work the hours the employer requires, he or she can be fired.

However, in order to prevent abuse of employees by requiring excessive work, the federal Fair Labor Standards Act (FLSA) requires that non-exempt employees be paid at a 50% higher rate—time-and-a-half, or overtime—for any hours over 40 worked in a work week. The employer can require the workers to work overtime, but must pay non-exempt employees a premium: overtime. In practice, this overtime premium helps limit mandatory overtime use. Most businesses would prefer to not pay their non-exempt employees more, so the idea is that they will only require overtime when it’s really worth the extra expense.

However, if an employee is exempt—so they are a salaried employee earning at least $455 per week, and whose job meets one or more of the criteria to be exempt (you can find these criteria on the U.S. Dept. of Labor website)—they can be made to work any number of hours per week without any additional pay. For a salaried exempt employee, his or her weekly salary is the total compensation he or she gets for all work done during a work week.

Refusing Mandatory Overtime

So, can you refuse mandatory overtime? No. That doesn’t mean you can’t discuss the matter with your employer and ask them to let you skip the overtime. If you’re a good worker, don’t regularly try to skip overtime, and it’s a non-emergency for the employer, quite possibly they may let you out of it. As discussed above, overtime is expensive for employers, giving them an incentive to not require it. But all you can do is ask; at the end of the day, the employer has the right to require overtime.