If your boss wants you to work overtime without pay, and you are a non-exempt worker (see below), you don’t have to put in extra hours without getting paid. That is one of the many provisions of the Fair Labor Standards Act.
What is a Non-Exempt Employee?
You are a non-exempt employee if you work for a minimum hourly wage and overtime pay rate guaranteed by the federal or state minimum wage laws. As such, you are paid for every hour worked and overtime pay for the number of hours exceeding 40 hours. If your job qualifies for a minimum wage, you are eligible for overtime pay.
Non-exempt employees include retail associates and similar positions, servers, contractors, freelancers, and interns. The non-exempt employees can earn more than the federal minimum wage and still not be considered exempt employees within the meaning of the criteria outlined below.
Some workers are considered non-exempt, regardless of how well they are compensated. For example, under the FSLA, workers in the skilled trades—carpenters, electricians, plumbers, etc.—must be considered non-exempt. Likewise, first responders and law enforcement personnel continue under the FSLA to be eligible for overtime pay.
My Boss Wants Me to work Unpaid Overtime-Can You Get Fired For Refusing To Work Overtime?
If you are a non-exempt employee, you can get fired for refusing to work overtime, but the overtime work must be paid. Under the FSLA, the employer must pay non-exempt employees overtime at a rate of at least one and one-half times the employee’s hourly wage. Employers are not required to pay overtime pay for Saturdays, Sundays, holidays, unless the overtime hours are worked on such days.
The federal minimum wage is currently $7.25 per hour. That amount varies state by state, and it is the lowest amount an employer must pay for work performed. Companies whose revenues are $500,000 or more or conduct commerce/communicate over state lines are subject to the federal minimum wage law.
Pay for Lunch or Coffee Breaks
If your employer voluntarily offers short (5 to 20 minute) breaks, under federal law, you are still on the clock. On the other hand, longer meal periods lasting at least 30 minutes are not work time, and the employer does not have to compensate workers for meal breaks.
However, if a non-exempt employee is required to work through a lunch break, or eat while working, that employee is entitled to pay. Also, some states’ laws require lunch breaks. In California, for example, an employee who works for more than five consecutive hours must be allowed a meal break for at least 30 minutes.
Other Pay Matters Not Regulated by the FSLA
In addition to payment for meal or rest periods, the FSLA does not require employers to offer:
- sick pay, paid holidays, vacations, or severance pay
- increased pay for weekends or holidays
- fringe benefits and pay raises
- termination notice along with reasons and immediate payment of final wages due
- W-2 forms and pay stubs
Also, while some states limit the number of work hours an employee can work, other matters not covered by the FSLA are governed by agreements between the employers and the employee collective bargaining process.
Special Provisions for Employees Who Work for Tips
Non-exempt employees in most states will receive a lower minimum wage because of tips, the amount depending on the tip credit allowed by the state law. Employers can pool tips and divide them among all employees, but cannot take a percentage of the tips. Also, in many states, the employer can pass credit card tip charges—usually about 2%– for tips left by the customer on credit card payments.
One exception to the foregoing is the California law for tipped employees. Tips in California are considered the exclusive property of employees. Employers also may not, among other things, lower the hourly wage nor deduct the percentage for credit card tips.
Any employer who repeatedly or willfully violates the overtime pay requirements of the FSLA is subject to a penalty of $1,000 for each violation. In addition to the federal and/or state fines, the employer must pay for those extra hours. Failure to do so could result in criminal prosecution of the employer.
The Department of Labor’s Wage and Hour Division administers and enforces worker protection laws. See the dol.gov web page for information required to file a complaint.
Definitions of Exempt Employees
An exempt employee is both excluded from minimum wage requirements and is not eligible for overtime pay. Under the FSLA, an exempt employee:
- is paid at least $35,568 annually or $584 per week
- is paid by salary, rather than an hourly wage
- performs exempt job duties
Types of exempt positions
Job titles are not what determines an employee’s exempt status. Exempt status comes with roles and responsibilities and six FSLA-defined exemptions as follows:
1. Executive employees, who are responsible for managerial positions in an organization. Executives must also be responsible for supervising/directing at least two other employees. They must have the authority to change the status of another employee through hiring, firing, or promoting, etc.
Exempt executive employees are the decision makers in an organization. They include the CEO, supervisors, managers, as well as other key decision makers in the organization.
2. Administrative employees, who perform office or non-manual work directly related to the organization. These are salaried employees who exercise judgement and discretion over important business matters and do not report to another person.
Exempt administrative employees are found in accounting, human resources, payroll, legal, public relations, and finance-related roles in the organization.
3. Professional employees, whose job duties require specialized education (a college degree or higher in their field). They frequently qualify for a professional exemption while working in an artistic or creative field requiring originality, special talents, inventiveness, and imagination in carrying out their specialized job duties.
Exempt professional employees are medical professionals—doctors, dentists, registered nurses—and other licensed professionals, each of whom require advanced education.
4. Employees who are highly compensated and have at least one duty of an exempt executive, administrative, or professional employee.
5. Computer-related employees, who meet requirements for exemptions as well as work in computer-related roles. They include programmers, systems analysts and engineers, and software engineers.
6. Outside sales employees, whose primary job is securing contracts or orders and making sales. These employees do their work outside the employer’s business premises. They are the organization’s sales people and marketers.
My Boss Wants me To Work Unpaid Overtime—I’m an Exempt Employee
Again, exempt employees are not eligible for overtime pay. So, there are no FSLA restrictions on overtime for exempt employees. There are times when an exempt employee might need to work over a weekend, for example, to meet job responsibilities.
If an exempt employee refuses to work overtime, it could be a violation of their employment terms. This could be justification for an employer to terminate the employee. On the other hand, there are some overriding health and safety rules and limits on work hours regulated by OSHA or the Atomic Energy Commission, for example, that could prevent an employer from forcing an exempt employer to work overtime hours.
FAQs and Recap
Should You Work Overtime Without Pay?
If you are a non-exempt employee entitled to overtime pay, the answer is a definite “no.” In many cases, it is illegal not to compensate non-exempt employees for working overtime. That applies even if the employee does so without the employer’s approval.
What is the main difference between an exempt and a non-exempt employee?
While each employee classification has its own eligibility requirements, the principal difference is that non-exempt employees must be paid overtime, and an exempt employee is not eligible. Also, non-exempt employees are guaranteed a minimum wage, while non-exempt employees receive a salary.
Can employer make you work overtime without pay? I don’t want to work overtime. Do I have to?
No, if you are a non-exempt employee, you must be paid. If you are an exempt employee, the answer is yes. You must work the hours specified by the employer.
The employer expects unpaid overtime. Is that legal?
Only if the employee is highly paid and exempt. Otherwise, requiring unpaid overtime is a violation of the law and can make the employer subject to a $1,000 penalty for each violation, as well as a requirement to restore all unpaid overtime pay.
Can you get fired for refusing to work overtime?
Yes, for both non-exempt and exempt employees. However, non-exempt employees must receive overtime pay. Exempt employees are not subject to overtime rules and can be required to work past the minimum 40 hours if required, unless overriding concerns of health, safety, and job requirements apply.
What are the 3 special rules governing exempt employees?
1. Exempt employees do not qualify for overtime for the amount of work performed in excess of 40 hours per week.
2. Exempt employees can be suspended without pay for violating workplace regulations as specified by the organization.
3. Exempt employees are not subject to any special tax exemptions.