Mandatory Overtime: Can Employees Refuse to Work Overtime Hours?

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The New Jersey State Wage and Hour Law (“NJSWHL”) governs the requirements for the payment of overtime for hours worked in excess of 40 hours in the state of New Jersey. Though the most common issue regarding the NJSWHL involves employees that voluntarily worked overtime hours but were paid their regular wages, sometimes employees do not want to work overtime at all. In those situations, employees often assume that their employer cannot force them to work overtime hours as a condition of their employment. This assumption, however, in incorrect: in New Jersey, most employers can force their employees to work mandatory overtime hours.

Mandatory overtime is legal in New Jersey and an employer can fire an employee if he or she refuses to work over 40 hours per week. The NJSWHL requires employers to pay a minimum wage of $8.33 (the minimum wage will increase to $8.44 in 2017) for up to 40 hours worked by an employee and “time and a half” for the hours worked in excess of 40. The law, however, does not regulate how many hours an employee can be required to work in excess of 40 hours. Because of this, employers are generally allowed to require their employees to work as many hours as they want.

One important exception to this rule applies to health care workers. The New Jersey Mandatory Overtime Restrictions for Health Care Facilities (“MORHCF)” prohibits health care facilities from terminating a “covered” hourly worker if he or she refuses to work overtime, unless there is an “unforeseeable emergent circumstance” or a national, State, or municipal emergency.

Health care workers that are covered by the MORHCF are hourly employees who are involved in direct patient care activities or clinical services and are employed by a health care facility. The law defines the term “health care facility” as a facility licensed by the New Jersey Department of Health and Senior Services, a State or county psychiatric hospital, a State developmental center, or a health care service firm registered by the Division of Consumer Affairs in the Department of Law and Public Safety (commonly, hospitals, nursing homes, outpatient clinics, assisted living residences, etc.). Therefore, hourly nurses and nurse aids are usually protected by this law, but doctors, volunteers, or on-call employees are not.

As stated above, the MORHCF prohibits employers from discriminating against or firing a covered employee who refuses to work overtime, unless there is an “unforeseeable emergent circumstance” or a national, State, or municipal emergency. An “unforeseeable emergent circumstance” is an unpredictable and non-recurring event that requires immediate action. Because the law makes clear that health care facilities can only require overtime work as a last resort, not as a solution for understaffing, an employee can be forced to work overtime only after the employer attempted and failed to fill in the vacancy with volunteers, on-call employees, per-diem staff, and personnel staffed by temporary work agencies.

In conclusion, mandatory overtime is generally legal in New Jersey. However, most health care workers are allowed to refuse working overtime hours unless there is a state or national emergency or an “unforeseeable emergent circumstance.”

By Luis Hansen, Esq. and Ty Hyderally, Esq.

The above blog post was written over one year ago. The information in this blog post may not be current due to changes in the law or recent case decisions. We encourage you to contact our firm, at 973-509-8500, for information on this particular post and to make sure the content is still current.

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