Worked and Mandatory Overtime
There are no wage and hour laws that limit the amount of hours that a person 18 years of age or older can work either by the day, week, or number of days in a row, or that require breaks for employees 16 years of age or older. An employer is free to adjust the hours of its employees regardless of what the employees are scheduled to work. For example: To avoid having to pay time and one-half overtime pay for hours worked in excess of 40 in a workweek that is Sunday through Saturday, an employer could adjust the hours of an employee who has already worked 34 hours by the end of a Thursday by requiring that the employee work only six hours on Friday and not work on Saturday at all regardless if the schedule had called for this employee to work eight hours on Friday and Saturday. Also, this may be done regardless if the employee agreed to this or not. An employer can make the scheduling or rescheduling of its employees hours worked as a condition of employment.
The rules are the same for a large corporation or a small mom-and-pop business. Neither the N. C. Wage and Hour Act nor the federal Fair Labor Standards Act (FLSA) limit the amount of hours that an employee 18 years of age or older can be required to work either by the day, week, or number of days in a row. There are no limitations on how many hours an adult employee can be required to work regardless whether they are a salaried-exempt employee or a non-exempt employee. The employer is only required to pay time and one-half overtime pay based on an employee’s regular rate of pay for all hours worked in excess of 40 in a workweek to its non-exempt employees. There is no limit on the number of hours the adult employee may be required to work.
The decision to work employees in eight-hour shifts, 12-hour shifts, 16-hour shifts, etc., is entirely up to the employer. The decision to call an employee back in to work on a scheduled day off is entirely up to the employer. An employer can make the working on a scheduled day off or working a full shift as a condition of employment regardless of an employee’s start-time or end-time. An employer can make the working of overtime hours as a condition of employment. Since an employer can make the working of overtime mandatory, the employer can terminate an employee if the employee refuses to work overtime regardless of how many hours the employee has already worked that day or workweek. The employer does not have give its employees any advanced notice of having to work extra hours. An employer can inform its employees that they have to work overtime at the last minute. The employer does not have to take into consideration how the work schedule will affect an employee’s personal life.
How an employee is paid depends on if the employee is non-exempt or exempt from minimum wage and/or overtime pay. An employer must pay an employee at least the minimum wage (currently $7.25 an hour under both North Carolina and federal labor laws) or pay the employee the promised rate of pay, whichever is greater, and pay time and one-half overtime pay based on the employee’s regular rate of pay for all hours worked in excess of 40 in a workweek, unless the employee is exempt for some reason. The minimum wage and overtime pay are based on the hours worked each workweek and not by the number of hours worked each day or by the number of days worked regardless of the length of the pay period. Each workweek stands on its own.
Being paid a salary does not exempt an employee from the minimum wage and/or overtime pay requirements. If an employee is paid a salary and is not paid time and one-half overtime pay for hours worked in excess of 40 in a workweek, then a determination must be made as to if the employee is a salaried-exempt employee or not. The main categories to be a salaried-exempt employee are for executive (supervisory) employees, administrative employees, and professional employees who meet certain requirements. One of the general requirements is that the salaried-exempt employee must be paid a guaranteed salary of at least $455 a workweek (no salary test for outside sales), which would also be the promised rate of pay for the employee. It then does not matter how many hours the salaried-exempt employee works in a workweek as the guaranteed salary is pay for all hours worked in a workweek regardless of the number of hours worked. For more details on the requirements for an employee to be a salaried-exempt employee, please review the Code of Federal Regulations (CFR) 541, which the N.C. Department of Labor (NCDOL) has adopted, online at: http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_541/toc.htm
Also, the Wage and Hour Act does not require mandatory rest breaks or meal breaks for employees 16 years of age or older. The only required rest breaks or meal breaks are for youths under 16 years of age. Youths under 16 years of age have to be given at least a 30-minute break after five hours of consecutive hours and no break of less than 30 minutes shall be deemed to interrupt a continuous period of work. Generally, it is entirely up to an employer to give or not give rest breaks and/or meal breaks to some or all of its employees who are 16 years of age or older. An employer is not required to give its employees a smoke-break or to provide a breakroom. Please review on-line our Breaks—What to Know fact sheet for more details.
If you still have questions, you cannot determine the answer to your minimum wage and/or overtime pay issue, or if you need further clarification as to an employee being salaried-exempt or not, here’s what you need to do:
1) You need to contact the U.S. Department of Labor’s Wage and Hour Division office in either Charlotte (704-749-3360) or Raleigh (919-790-2741) if any of the following is true: the private employer’s gross sales or receipts for a year are $500,000 or more; it is a part of a chain operation with three or more units or there are 30 or more employees; the employer is a hospital, school, nursing home, group home for the mentally or physically disabled, or day care center; or the employer is a domestic, agricultural or governmental employer. The website is http://www.dol.gov/.
2) You need to call the NCDOL Wage and Hour Bureau at 919-807-2796 (Raleigh) or toll-free (NC only) 1-800-NC-LABOR (1-800-625-2267) if the private employer’s gross sales or receipts for a year are less than $500,000 or you do not know, or if the employer is a private non-profit organization. Our call center is open from 8 a.m. to 5 p.m., Monday through Friday.
The NCDOL can assist if the issue concerns wage payment, which has to do with promised wages such as hourly pay at more than the minimum wage, a promised salary, or shift differential pay; or promised wage benefits such as vacation pay, sick leave, severance pay, jury duty pay and holiday pay. Only governmental employers are exempt from the wage payment provisions.
N.C. Department of Labor
Wage and Hour Bureau
1101 Mail Service Center
Raleigh, NC 27699-1101
919-807-2796 or (toll-free NC only) 1-800-NC-LABOR (1-800-625-2267)