Saying no to overtime can affect family leave

CAN THEY DO THAT? / WORKPLACE ADVICE

July 27, 2005|By CARRIE MASON-DRAFFEN

Q. I work for a large corporation. The words "business needs" and "mandatory overtime" are frequently used. We are expected to work 10 hours of mandatory overtime unless we have a doctor's note or approval for time off under the Family and Medical Leave Act. Our supervisor says that if we refuse to work overtime without an acceptable excuse, then the time we didn't work will be counted against any future FMLA leave.

No one in the office remembers being told this until she informed us recently. And we haven't seen anything in writing. Can the company legally enforce the policy? And more important, is mandatory overtime legal?

A. The law backs your company on both issues. Mandatory overtime is legal. In fact, federal labor law does not restrict the weekly hours of most employees over age 18.

And as odd as it seems, your refusal to work overtime could affect calculation of your time off under FMLA leave. So if you refuse to work the 10 extra hours a week, the company can legally adjust your leave by the number of hours you refused to work, said Irv Miljoner, who heads the U.S. Labor Department's Long Island office.

This part of the statute comes into play when an employee wants to take an intermittent FMLA leave. The law allows qualifying employees whose companies have at least 50 workers to take off up to 12 unpaid weeks to care for a newborn, themselves or a family member when facing a serious illness.

If your company requires you to work 50 hours a week, including the 10 hours of overtime, but you insist on working 40, then your normal workweek would be considered the latter for FMLA purposes.

So if you take off a total of 50 hours to care for an elderly parent, then based on your workweek you would be charged one week and 10 hours toward your FMLA.

"The concept of workweek under the FMLA refers to the employee's usual or normal schedule as to hours worked per week," Miljoner said.

The silver lining in all this is that you if qualify for overtime pay, the company generally has to pay you at least time and a half when you work more than 40 hours in a week.

For more information, call the U.S. Labor Department, which administers the FMLA, at 866-487-2365.

Carrie Mason-Draffen is a columnist for Newsday, a Tribune Publishing newspaper. E-mail her at yourmoneytribune.com.

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