Hours 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 has adopted.

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 our What to Know About Breaks fact sheet for more details.

Minimum Amount of Scheduled Hours

An employer is not required to pay a minimum number of hours to its hourly paid employees or to its non-exempt salary employees including if they are called back in. An employer only has to pay its hourly employees and non-exempt salary employees for the actual hours worked regardless of how long or how few the time is.

For example: If an employer called an employee in to work but sent the employee home after waiting 15 minutes to see if the employee would be needed, then the employer only has to pay the employee for the 15 minutes as the time waiting is work time. If an employer called an employee in to work but met the employee at the door and sent the employee home before the employee had to wait or perform any work, then the employer would not have to pay this employee anything at all. If an employer called an employee in for a conference or meeting that lasted only 30 minutes and this is all of the time that the employee worked that day, then the employer only has to pay the employee for the 30 minutes. But an employer does have to pay its employees for the time they have to wait in the establishment to see if they are needed.

The only variation to this is if an employer has made a promise to pay its employees a certain minimum amount of time if an hourly employee or non-exempt salary employee is called in as a wage payment agreement. The giving or not giving of promised wages, including wage benefits, is entirely up to each employer. "Promised wages" can be an hourly rate that is more than the minimum wage, overtime pay for certain days worked rather than the statutory requirement of paying overtime pay for the hours worked in excess of 40 in a workweek, shift differential pay, commissions, bonuses, piece-rate, production pay, a weekly salary, a monthly salary, subsistence, or mileage expenses. "Wage benefits" are benefits such as vacation pay, sick leave, jury duty pay, and holiday pay. If an employer does promise to pay such wages, then the employer must pay all promised wages, including wage benefits, accruing to its employees based on any policy, agreement or practice that the employer has established. And pursuant to N.C.G.S. 95-25.13(2), the employer must: "Make available to its employees, in writing or through a posted notice maintained in a place accessible to its employees, employment practices and policies with regard to promised wages."

Please review our fact sheet on Promised Wages Including Wage Benefits for details on promised wages and wage benefits.

For more information about workplace rights, please contact our toll free number at 1-800-NC-LABOR (800-625-2267).