Often it seems that employees are at the beck and call of their employers, with little control over how and when they work. Short notice of canceled shifts or mandatory overtime can be difficult to accommodate and can wreak havoc on an employee’s family and personal life.
While employers legally have control over scheduling, it is not absolute. Employees have rights and can refuse to work additional shifts under certain circumstances. In addition, your employer cannot change your schedule to harass you based on your membership in a protected class.
Can My Employer Force Me to Work Overtime?
In most cases, yes, employers generally can require you to work mandatory or unscheduled overtime. However, there are a few exceptions in which you can refuse overtime, such as in certain professional, technical, clerical, and mechanical roles, and if you are working in unsafe conditions or forced to work 7 days in a row. More is discussed below.
Rules for Overtime Pay
If your employer does require you to work overtime, you must be paid 1.5 times your regular rate of pay for hours 8-12 during a shift, and 2 times your regular rate for hours 12+ during a shift.
You are also entitled to overtime whenever you work more than 40 hours in a week. You must be paid your overtime as wages, not as “credits” for PTO or other “benefits,” and you can’t be paid under the table.
Is Overtime Required If I Am On-Call?
Overtime—and minimum wage—is also required under certain circumstances where you are not working but are “on-call” and waiting for work. Your employer must pay you for on-call time when the requirements of being on call impair your ability to do what you want with your free time.
For example, if your employer limits how far you can travel, how quickly you must report to work, or on what type of activities you can do, you may be entitled to be paid for that time, and that time factors into your overtime (and “day of rest,” discussed below) analysis.
Does an Employer Pay Overtime in an Alternative Workweek?
An “alternative workweek” is an agreed-upon workweek where you are required to work more than 8 hours in a 24-hour period. Often, this is called a “4-10” workweek (four shifts of 10 hours each). Your employer does not have to pay you overtime for hours 8-10 if you have a valid 4-10 workweek (or other alternate workweek). But the requirements for implementing an alternative workweek schedule are very strict, and few employers comply with them. If you have questions about your alternative workweek schedule and whether you are owed overtime, you should talk to one of our experienced wage and hour lawyers for guidance.
What Are the Exceptions to Mandatory Overtime?
Industry-Specific Exceptions
In California, workers in the “professional, technical, clerical, and mechanical” occupations have the right to refuse to work shifts that total more than 16 hours in a 24-hour period, without fear of retaliation. There is an exception for “emergencies.”
In addition, nurses who work for the State of California or at State facilities cannot be required to work overtime, and cannot be retaliated against for refusing to work overtime.
“Day of Rest” Exceptions
One major exception to the rule that employers can require you to work overtime is the “day of rest” rule in California. Under this rule, you can’t be required to work seven days in a row, unless you want to.
This means that you can validly refuse to work on the seventh consecutive day, if you want to. (Note that you can choose to work seven days straight—provided that your employer tells you that you have the right to refuse the shift and doesn’t pressure you. You also would need to be paid overtime for all of your seventh consecutive shift.)
Safety Regulation Exceptions
More generally, you can’t be required to work under unsafe conditions or conditions that violate OSHA regulations. This may give you more leeway to refuse to work when conditions are unsafe—for instance, when you are being asked to stay on the job without being given sufficient time to sleep, in a way that endangers you or others. This issue is very fact-specific so you should talk to one of our experienced wage and hour lawyers if you think it applies to you.
Schedule Changes Designed to Harass or Discriminate
Unfortunately, employers sometimes change an employee’s schedule because they want to force the employee to quit. An example would be a single parent who negotiated a set schedule at the time of hire and worked productively for many months, until a new supervisor decided this schedule was a hassle and withdrew the agreed-upon accommodation. Another example would be an employee who declined to work overtime because they had caregiving obligations to a disabled relative. These situations may give rise to claims for family responsibilities discrimination.
Can My Employer Retaliate Against Me for Refusing to Work Overtime?
Usually, your employer can discipline you for refusing to work overtime, if you don’t fall into one of the exceptions discussed above. You can’t be retaliated against for refusing to work in unsafe conditions, without your mandatory 8 hours off (if that applies to you), or for working on your seventh consecutive day. In addition, you may have rights under so-called “fair scheduling” or “predictive scheduling” laws, which will be discussed more in a later blog post.
If you are considering refusing to work, you should talk to an experienced wage and hour and retaliation lawyer to understand your rights and potential consequences.
Talk to an Experienced Employment Attorney
Every worker in California is entitled to be paid a fair wage for each hour worked. If you’re not being paid required overtime wages, your employer is committing wage theft—and you’re entitled to the unpaid wages and more. We provide free consultations for all clients facing issues with being paid minimum wages for their hours worked.
Contact our experienced employment lawyers today.
Julian Burns King graduated with honors from Harvard Law School and founded King & Siegel in 2018. As head of the Firm’s discrimination and harassment practice areas, she champions the rights of working parents and victims of workplace discrimination and harassment. She has been recognized as a “Rising Star” by Super Lawyers annually since 2018 and has recovered tens of millions of dollars on behalf of her clients.