Q: Can we make overtime mandatory?

A: Under state and federal law, it is entirely permissible to require employees to work overtime.

The only restriction is a section of state law that says you cannot compel employees to work more than six days in a calendar week.

Outside of that statutory limit, the issue is more a matter of authority and consequences.

Whether presented as a requirement at the beginning of employment or at some time during employment, it still leaves open the question of what leverage management has to get employees to remain at work for all the extra hours you need them to work.

Typically, employers will present the requirement with some qualified policy statement, such as:

“While we cannot guarantee that overtime will be available, reasonable amounts of overtime may be required from time to time. Advance notice will be provided, to the extent possible, and employees are expected to work such hours as needed.”

When such a statement has been presented as a term of employment at the time of hire, the employee who later decides they are unwilling to work overtime hours may be disciplined or discharged.

If the employer can characterize an employee's refusal to work overtime as deliberate misconduct, the fired worker may be denied unemployment compensation.

I say may because uncertainties are common when it comes to UC eligibility.

For example, even when proper notice of overtime requirements is given at the time of hire, if it has been years since overtime was required (or if it was never required at all)—essentially negating the expectation and mandate of working overtime—UC benefits may be awarded.

If the employer can characterize a refusal to work overtime as misconduct, the fired worker may be denied compensation.
This would be especially true if an employee, relying on the consistent absence of overtime, takes on a second job or some other personal obligation that leaves them unavailable to work extra hours.

Similarly, UC may be awarded where the employer refuses to explore possible accommodations for an employee who claims they cannot work additional hours due to a need to adhere to sincerely held religious beliefs that forbid working at certain times.

When an overtime mandate is implemented post-hire, an uncooperative employee could claim that it is a change in the terms of employment that they cannot now agree to due to other personal obligations.

In that case, you might still discipline or fire them, but they would likely receive UC benefits.

Three Cases

For a sense of how the unemployment system deals with these disputes, here are three representative unemployment appeals decisions.

Note the persistent references to "reasonableness" and the timing of communications between the parties:

  1. Ronald J. Perkis v. Connector Co.
  2. Vincenza Alfieri v. Battiston's of Avon Inc.
  3. Mario F. Petrozza v. HI-G Company Inc.

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