Few fields are as staffing-challenged as long-term care.
One consequence of this sector’s perpetual staffing shortage is that employees are sometimes — or in some facilities more than sometimes — told they must work overtime.
But can an employee refuse? As is so often the case in matters involving labor relations, it depends.
The easy answer is that in general, employees cannot refuse to work overtime. Moreover, the Fair Labor and Standards Act — the federal law covering this matter — does not place a limit on how many hours of overtime an employer may require. However, facilities are bound to pay time and a half for any hours worked beyond 40 in a single week.
But there are times when employers cannot force the issue.
The most obvious example is if the requirement violates your own rules. For example, if your organization’s employee handbook happens to specify overtime limits (say, no more than eight hours a week), you could face legal exposure by going beyond that barrier.
Also possibly related: employers cannot enforce mandatory overtime if it is out of compliance with a collective bargaining agreement.
Yet another exception is if working overtime might present a health or safety risk. The obvious red flag here would be requiring a worker to put in so many extra hours that fatigue leads to injury. That is the kind of development that is roughly 100% likely to spur an on-site inspection from your friends at the Occupational Safety and Health Administration.
Another risk factor for employers is failing to properly compensate workers who put in extra hours. How can that happen? Let us count some of the ways.
• Misclassifying workers as exempt employees.
• Misclassifying workers as independent contractors.
• Deducting overtime pay due to poor performance.
• Deducting pay for rest breaks to avoid paying overtime.
As a general rule, it’s probably best not to mandate overtime. And yes, that advice is easier said than done.
But if requiring overtime is absolutely necessary, be sure to color inside the lines. Or it might cost your organization far more than time and a half.
John O’Connor is editorial director for McKnight’s.
Opinions expressed in McKnight’s Long-Term Care News columns are not necessarily those of McKnight’s.
