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.
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.
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.