Hello, everybody. This is Alan Crone, and this is our next legal bulletin in our Ask Alan series. Today’s question is, can overtime be taken away? Overtime assignments can be taken away, but once you earn overtime hours, they must be paid.
Frequently, I’m asked about mandatory overtime, or kind of the opposite, when employers say, “I’m not going to schedule you for overtime.”
And I think that’s an important distinction because sometimes what people hear is you got to work overtime. But I’m not going to pay you, and that may be what the employer is saying. If you’re an employer, you want to be very careful how you communicate your desire for scheduling. And so, it’s best to add that word scheduling or ask about scheduling and say:
- Well, does that mean if someone says I don’t pay for overtime?
- Well, does that mean you don’t schedule me for overtime?
- Does that mean if I work more than 40 hours a work week, you’re not going to pay me over time?
And sometimes that clears up the misconception.
If you’re an employer, you want to make sure you communicate that very clearly and say, “look, I don’t want you to work more than 40 hours a week. Now, if you do, I want to pay you for the time that you actually work. But we may want to have a conversation about why you do you take this is a more than 40 hours a week job. Why do you need more hours if that’s the case?” for example.
So it’s great to say, “look, I’m not going to schedule you for overtime. I’m not going to schedule you for more than 40 hours. I don’t want you working more than 40 hours.”
Employer should always pay for every hour that an employee actually works, but am employer is not required to let you work more than 40 hours a week. Employers are not required to let you work at all.
It’s up to the employer to decide how much you work and how long you work, but it’s up to the employee to record all the hours they work. Let the employer know that they’re working more than 40 hours a week and enter into a dialogue about that.
So often I see folks with overtime claims and a big element may be a miscommunication over what the expectation for the amount of hours that should be worth? Now, there are also times where employers require people to work more than 40 hours, and for whatever reason, just simply don’t pay them.
So, if you’re an employer and you have folks that are working more than 40 hours a week and you’re not paying them time and a half, you need to evaluate whether or not that is in compliance with wage and hour loss. And if you are a worker and you work more than 40 hours a week and you’re not paid for that extra time, you need to inquire about whether or not you are exempt or nonexempt from the overtime requirements and make sure you’re paid correctly.
So, can overtime hours be taken away?
They can be taken away in terms of scheduling, but they can’t be taken away if you have actually worked them. If the worker actually works the time, then the employer must pay time and a half for every hour actually worked over 40.
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