Overtime Archives

“Is there a limit to how many hours I can be required to work?”

Published on May 29th, 2013 by Alan L Sklover

Question: Hi, Alan. I so value your newsletter, and learn a lot from it. Thank you for your words of working wisdom. I haven’t seen the following issue covered yet. 

I work from 9:00 am to 8:00 pm as a caregiver employed by a home health agency in California. I have one weekday off a week, and alternate weekends. My hours are  60 a week. 

My employer has just scheduled a mandatory two-hour meeting, which falls on my one weekday off. Working a 60-hour workweek as I do, I am understandably protective of what little time I have off. 

Can my employer insist I go to this meeting? Is there a limit to how much I can be required to work? With appreciation . . . 

P.S.: I’ve never been paid overtime, even though at times I have worked 24 hours straight.

N.R.
Sacramento, California

Answer: Dear N.R., I think you are correct: I have not addressed this issue before. Believe it or not, for most employees there is no limit on how much – or when – an employer can require they work in order to keep their jobs. However, in California there is a “kind of limit,” that might, in some weeks, apply to you. Here’s what I’ve found:          

1. To my best knowledge, there are just three groups of people who have a legal maximum number of hours they can be required to work: (a) children, (b) unionized workers, and (c) “safety-related” employees, such as airplane pilots, doctors in training, and miners. The U.S. federal law that governs most employment matters, the Fair Labor Standards Act (commonly known as “FLSA”) has no limit on the number of hours an employee can be required to work. California state law, and New York state law, have none either. I know of no other state law that sets a limit. 

(a) Children: That said, every state I know of has a legal maximum number of hours a week that a child can be required to work – in fact, even allowed to work if they want to. For example, under California state law, children aged 12 and 13 cannot be employed on any school day, either before or after school. 14- and 15-year olds can work three hours per school day, for a maximum of 18 hours a week. 16- and 17-year olds can work four hours on a school day and a maximum of 48 hours a week. 

(b) “Safety-related” Occupations: Federal laws also strictly regulate how many hours a day or a week certain occupations can work for safety reasons, including airline pilots and physicians – especially interns and residents in physician training. In other areas of public safety, maximum hours are also regulated by law. For safety reasons, strict regulations exist on the maximum number of hours miners can work in underground mines. 

(c) Collectively Bargained Agreements: Finally, most collective bargaining agreements set limits on the number of hours a unionized employee can be required to work during a work week. 

But for the vast majority of employees, there simply is no limit on the number of hours an employee can be required to work. 

2. California does, though, have a rather unusual law: an employee cannot be “discriminated against, demoted or fired” for refusing to work more than 72 hours in a work week. As you may be aware, I am not licensed to practice law in California. That said, I did a little legal research to answer your inquiry, and found this California law that, to my mind, is quite unusual: 

California Wage Order 4, Section 2(D)(1) provides that employers may not demote, fire or discriminate against employees who refuse to work more than 72 hours in a workweek, unless there is an emergency. What is an “emergency?” Another California law, Labor Code Sections 850 to 854, defines “emergency” as  “any unpredictable or unavoidable event that happens at an unscheduled time and requires immediate action.” 

Thus, while in California there is no limit on the number of hours you can be required to work, it is illegal to fire, demote or discriminate against you if you refuse to work more than 72 hours in a workweek. Since you regularly work “only” 60 hours a week, this may not apply to you. That said, you did mention that at times you have worked 24 hours straight, so in some weeks this law may very well apply to you.    

Note, too, that employees are permitted to “voluntarily” work more than 72 hours in a workweek if they “choose” to do so. Is that “choosing” always really “voluntary?” It is surely hard to say “No” to a “bossy” boss. 

3. In practical reality, it is the Federal overtime law that really serves to limit employees’ workweeks to 40 or so hours. N.R., I bet you did not know it, but the Federal FLSA law, enacted in the 1930’s, was enacted to encourage employers to “spread the jobs around,” and give jobs to more unemployed people instead of giving those who had a job 50, 60 or more hours of work each week. And, in this way, the FLSA remains today the reason most employers do not require employees to work so many hours. 

To learn more about overtime and your rights to collect overtime pay, feel free to review a newsletter I wrote a few years ago entitled “Overtime Pay: 80% of American Employees are Entitled. Are You?” You can do so by simply [clicking here.]  

4. From what you have written, you are quite probably entitled to payment for overtime for all of those hours worked in excess of 40 in a week. I don’t know all of the facts and circumstances of your position, but it seems to me not to be of an executive nature, an administrative nature, or highly paid, which are the three most common characteristics of an “exempt” position. From how you describe your work and how many hours you generally work, it seems to me quite probable that you are entitled to a large payment of overdue overtime.  

Incidentally, if your employer denies you overtime pay “willfully,” and most instances are easily provable to be “willful,” you may be entitled to double the amount you were denied, plus reimbursement of all legal fees.  

5. The FLSA law makes it illegal to retaliate against those who raise their legal rights to overtime. If you do decide to bring the issue of non-payment of overtime pay due you directly to your current employer, you should bear in mind that your doing so may not make your employer especially “pleased.” In fact, your employer may resent your doing so, and may want to “make life difficult” for you in retaliation.

Though, under the FLSA you are legally protected from retaliation in this situation, we all know that employers can be subtle in how and when they “get even.” For this reason, an anonymous letter to your employer, raising the issue of overtime pay about a group of employees of which you are a member, may be wisest. While some people might view anonymous letters as “sneaky,” I wholeheartedly consider them often totally justified, and a matter of carefully protecting yourself and your family when you stand up for your legal rights.

To assist those who are fearful of directly requesting the legal protections available to them, on our blogsite’s Model Letters section, you can obtain a “Model Anonymous Letter to Your Current Employer Requesting Overtime Pay For All.” To obtain a copy, just [click here.] Delivered by Email – Instantly.

You might also consider filing an anonymous complaint with the U.S. Department of Labor, as it is their job to investigate such complaints and, if they find a violation of FLSA, they will usually try to negotiate a resolution without Court action. For information on how to initiate an anonymous overtime complaint to the Wage and Hour Division of the U.S. Department of Labor, go to their website at www.dol.gov.  

The federal FLSA law provides that you have at least two years, and in some instances, three years, to exert you rights to overtime pay. For this reason, you can wait a while to do so, if you wish.  

On our blogsite’s Model Letters section you can obtain a “Model Letter to Your Former Employer Requesting Unpaid Overtime Pay.” To obtain a copy, just [click here.] Delivered by Email – Instantly.

6. Lastly, always bear in mind that no one can, or will, take care of you at work, or protect you and your workplace rights, better than you can or will, yourself. It is the employee, himself or herself, who can “Just Say No” to an employer’s violation of their legal rights, provided he or she is (a) confident in his or her skills and positive work ethic, (b) prepared in all respects to find a new employer who wants or needs those skills and positive work ethic, and (c) has saved up something of a “financial cushion” in case it takes a while to find what my kids call “a better gig.” 

It is our view that this kind of “wise navigating and negotiating” is, in the end, the smartest, most reliable, most effective, and most rewarding way to live your work life, and that is why we encourage it so much. 

N.R., I hope this has been of help to you. Please – from one hard worker to another – make sure you take the time to take care of yourself, and your loved ones, too.    

My Best,
Al Sklover

P.S.: If you would like to speak with me directly about this or other workplace-related subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. (Even 5-minute “Just One Question” calls). Just [click here.] Evenings and weekends can be accommodated.

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2013 Alan L. Sklover, All Rights Reserved.

“Why is it acceptable to expect someone to work 60 to 70 hours a week?”

Published on November 20th, 2012 by Alan L Sklover

Question: I find that the company I am working for is using the exempt-from-overtime status of many of its employees to avoid hiring additional employees to handle the abundance of work. Why is it acceptable to expect someone to work 60 to 70 hours a week for 7 years? I feel this is a form of abusive behavior.

If I work on a project, and my estimate to finish a task will be 1000 hours and be completed in 6 months, but the company wants the same work done in a two-month timeframe with the same number of resources, why is it they have all the flexibility to say “Get it done,” and the employees involved are not provided the resources or tools to succeed.

At what point does the overtime work become abusive? Don’t get me wrong – I am not looking for the easy way out, and I have always been a very hard worker, but this environment is beginning to create family and health issues.

Where is the accountability on upper management and the corporation to not abuse the exempt-from-overtime employees? Thanks.

Terry
Wheeling, West Virginia

Answer: Dear Terry: Every now and then a blog visitor asks a question that is so simple, basic and fundamental, it sort of stuns me, and takes me an extra degree of reflection and thought-gathering to answer.  

It reminds me of when my son, Sam, was about 5 years old, he looked at me in puzzlement and earnestly asked me, “Daddy, you always watch the news; why don’t you watch cartoons?” You know something, it took a few minutes to figure out an honest answer. (Like many people my age, I have now actually started to prefer cartoons to the day’s news.) Your question is such a question. Here are my thoughts:   

1. Like most voluntary relations and activities, the employment relation is what you make it, or allow your employer to make of it for you. Whether it is dating, friendship, or being a patron of a restaurant, most associations between people are voluntary. Both “sides” or “partners” can come and go as they wish. Few are involuntary. Employment is voluntary because slavery is outlawed. So, it could be said, your employer is asking for more, more and more hours, with less, less and less resources, because you and other of its employees are allowing it to do so, and not leaving due to the abuse. I know that sounds cold-hearted, but there is at least some truth in it.

2. Many would say, in response, that employment is not voluntary at all, because we all need to feed, house and clothe our families and ourselves. There is real truth to this view, as well unless, that is, your Grandfather invented the cell phone, or something like that, in which case you may not need to work and earn a living. Economic necessity is the daily truth for nearly all of us; work is not “voluntary.”

For this reason, people often feel coerced, without any say or way of standing up for themselves, and surely fearful of losing their jobs if they dare stand up in any fashion. And it is worse in difficult economic times, like those we experience today.

3. Our society and government recognize the “involuntary nature” of employment, and so have set up certain “limits” on how much, and to what degree, an employer can “exploit” or “take advantage of” its employees. As just a few examples, our society has (a) outlawed slavery as cruel and inhumane, (b) outlawed child labor, as not conducive to the education and growth of our children in their more tender years, (c) established minimum wage laws, so that all employees must be paid at least a certain amount of income, and live a certain minimal economic level, and (d) enacted occupational safety laws, so that fewer people get injured on the job. Many other examples exist. So, you see, there are some “limits” on some types of the “abuse” you speak of.

For people like yourself, who are “exempt” from the overtime provisions of state and federal law, these “limits” are more limited, and less effective, when it comes to hours you must work.  

4. Over and above the minimum legal standards set by our government, it is up to employees – either united into unions, or on their own – to “negotiate” a better level of treatment. Historically, labor unions were the primary force advocating for improved conditions and terms of working, on a worldwide basis. The struggles of the labor movement, especially in its early years, raised awareness of what you call the “abusive” nature of the way many employers treated their employees, and brought about the fairer, higher standards we have come to enjoy, including such things as paid sick time and mandatory overtime. Make no mistake about it: the struggles to make the workplace a fairer, more decent and less abusive place required true battles – with many suffering arrest, injury and even death. Fighting for fairness is not easy.

With the number of employees represented by labor unions on the decline, worldwide, it has come to pass that people need to stand up for themselves to make their workplaces fairer, at least for them.

5. Through our blogsite, we are trying to help people do – for themselves – just what you have identified “someone” has to do: make the workplace less abusive and fairer, not by picketing or striking, but by “navigating and negotiating” with employers. I firmly believe no one can help people better than they can help themselves, and in the simple notion that “If you make yourself valuable enough, and then ask for what you are worth, the sky is the limit on how much you can improve the way your employer treats you.” It is a very simple notion, yet for many a difficult concept to comprehend, and incorporate into your daily life. But for those who do “get it,” there is a certain freedom, a kind of exhilaration, and a true “awakening” that is quite exciting.

Teaching people that they can, are allowed, and free to do such “navigation and negotiation” is the first task. Teaching them how to do that is the second task before us. 

6. Dignity is never “given,” but instead must be “taken.” So many people wait for years and years to be treated fairly, and sooner or later just get used to the abuse they suffer. That is a dangerous kind of demoralization. Don’t wait years and years for your employer to be fair to you; instead, start today the process of making it in your employer’s self-interest to be good to you in all the ways you deserve. Mutual self-interest is the “guiding” light of navigation and negotiation between employers and employees. 

But you must, sooner or later, start the process by making yourself valuable and known for your value, and then to be someone who says, literally and figuratively, “I want to be treated in a better way, in terms of hours, compensation, title, benefits, opportunity for advancement, etc.” 

Dignity, freedom and power are, in this way, “taken,” and not “given.” That message, and the ways to achieve what you seek, comprise the essence of what this blogsite is trying to do, worldwide, forever, the “hard” way, but the way that truly works. 

Terry, I hope this makes sense to you. These thoughts are the product of lessons of history, that must be learned again and again by each person and in each generation.   

My best to you,
Al Sklover

P.S.: New! We now offer by digital download to your tablet Mr. Sklover’s classic, “Fired, Downsized, or Laid Off,” the unofficial “bible” of how to negotiate severance. If you would like to obtain a digital copy for your tablet, just [click here].

P.P.S.: If you would like to speak with me directly about this or other workplace-related subjects, I am available for 30-minute, 60-minute, or 120-minute telephone consultations. (Even 5-minute “Just One Question” calls). Just [click here.] Evenings and weekends can be accommodated.

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2012 Alan L. Sklover, All Rights Reserved.

Overtime Pay: 80% of American Employees are Entitled. Are you?

Published on May 22nd, 2012 by Alan L Sklover

“I’ve got all the money I’ll ever need
if I die by four o’clock.”

- Henny Youngman 

ACTUAL CASE HISTORY*Melanie was employed for four years by an accounting firm. Her title was Executive Computer Specialist, and her primary duties were those most people would call “trouble-shooting.” That is, whenever a firm partner or a member of the firm’s executive team had a computer problem, Melanie was called in to fix it.

Of course, emergencies do not neatly schedule themselves between 9:00 am and 5:00 pm. As you might imagine, Melanie sometimes received calls at 5:00 pm, requiring she work through dinner, and even later hours, to fix a problem. And sometimes, too, she received calls on the weekends requiring weekend work. She was quite good at what she did, and was always considered a “preferred fixer.” Over her four years with the company, her weekly salary rose to $2,200, which yielded Melanie a yearly income of $114,400. 

Unfortunately, Melanie received a notice that, due to cost cutting, her position was being eliminated, and then outsourced. For severance, Melanie was offered four weeks salary, that is, one week for each of her years with the company, for a total of $8,800. On the advice of her friends, she consulted us to review and discuss her severance agreement.

As is our custom when we are consulted, we first interviewed Melanie to learn the facts, events and circumstances of her employment. We also carefully reviewed the severance agreement Melanie was being asked to sign. As is almost always the case, Melanie was being offered some severance monies provided, however, that she sign an agreement releasing any claims she might have against her employer.

Our interview of Melanie did not find any legal claims she might have against her employer, with one major exception: Melanie, like most people who work in the U.S., was entitled to overtime for any hours she had worked over 40 hours in a week. However, she had never been paid overtime. When we calculated the amount of time Melanie had put in over 40 hours in a week, and the amount of overtime pay she was due – but had not been paid – we found that her employer actually owed Melanie over $115,000. Wow. And, by federal law, Melanie might even be entitled to double that amount, that is, $230,000. Wow, wow. Still further, by federal law, Melanie might also be entitled to interest on what she was owed, attorneys fees and Court costs if she went to court. Wow, wow, wow. So, it turned out Melanie was being offered $8,800 to give up a very solid legal claim for $230,000, perhaps more. That made no sense to us, and that made no sense to Melanie, either.

We contacted Melanie’s employer by a letter to the CEO, and after a few weeks of negotiations, achieved a settlement for Melanie: $100,000, provided she (a) release all of her legal claims, including the claim for unpaid overtime pay, and (b) maintain confidentiality about this entire matter. Her employer, it seemed, was concerned both (i) about what a jury might award Melanie, and (ii) that other employees might learn their rights to overtime pay, and then exercise those rights, as Melanie was doing, at a very significant expense to it.

Nice increase in severance: from $8,800 to $100,000, all because Melanie learned her legal rights. Education does, indeed, pay off.

LESSON TO LEARN: The vast majority of employees in the U.S. are entitled to time-and-one-half pay for any hours they put in over 40 in a week, by a federal law called the Fair Labor Standards Act, or “FLSA” for short.  FLSA’s coverage includes hourly and salaried employees, and there is no strict income limit on eligibility, as explained below. Many states have state overtime laws that give employees even greater overtime benefits, as well as broader eligibility to overtime pay.

Historically, many employees have not received overtime pay to which they have been legally entitled due, primarily, to ignorance of the law by both employees and employers. In recent difficult financial times, even more employees are being denied overtime pay to which they are legally entitled due to conscious cost-cutting efforts by employers.  

Chances are that you are entitled to overtime pay for time you put in over 40 hours in a workweek. To learn the basics of overtime pay eligibility under FLSA, just read below. You just might be as fortunate as was Melanie.   

WHAT YOU CAN DO: To find out if you are entitled to overtime pay, simply consider these guidelines. If you believe you may be entitled to overtime pay but are not receiving it, consider the suggestions below to remedy that situation:  

Read the rest of this blog post »


Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

Receive All Our Posts - It's Free!

Monthly Newsletter, Discounts, Events