This is a TikTok from a disgruntled CVS worker that had her manager chase her into the parking lot after she clocked out at the end of her scheduled shift because her replacement was late and there was no hourly employee left to handle the register. This video has been viewed over a million times, has been liked close to 300,000 times, been forwarded over 2,100 times, and has almost 2,200 comments. Those comments included, “Domino’s tried to tell me I had to work 3 hours over my extra shift because they didn’t have enough people. sorry for you lol”; “If they expect me to be there on time, not a second later, then expect me to clock out on time, not a second later😁”; “if I HAVE to clock in on time then I HAVE to clock out on time too, bye”; and “McDonalds tried that with me before I left “But so and so ain’t here yet” and that’s not my problem my shift ends at 3 😘.” Clearly, there is no sympathy for the employer – nor should there be. The employer could have scheduled better or the manager could have jumped on the register instead of spending the same time chasing an off duty worker into the parking lot.
The comments also included a few social media lawyers offering advice, including: “if they try to reprimand you ,tell them your schedule (sic) is considered a contract, they can ask you , but can’t demand labor violation.” Well, I’m pretty sure that this person is not a lawyer and has no real legal training. (Best Law Read: Why Having Skilled Employment Attorneys Is Critical).
So, let’s start with the basics that an employer cannot physically force employees to stay at their post working beyond the end of their regular shift. With that being said, short of physical force, your boss or supervisor can legally threaten to fire you if you leave your job, even if it is at the end of your scheduled shift and even if you have other really important plans (or not so important plans).
Early this year, our wage and hour attorneys blogged about the legality of mandatory overtime. (Best Law Read: Can My Job Require Mandatory Overtime?). In that blog, as well as several other wage theft blogs, our overtime rights lawyers explained that the Fair Labor Standards Act (“FLSA”) requires employers to pay non-exempt employees at a rate of time and a half their regular pay for all hours worked in a designated work week. (Best Law Read: Is All Work Performed On A Farm Exempt From Overtime?; Does Standby Time Count For Overtime Pay Calculations?; Is My Manager Personally Liable For Overtime Violations?). Moreover, if an employer requires an employee to stay beyond the end of a scheduled shift, the boss or manager cannot force an employee to clock out and keep working – all hours worked must be on the clock.
However, what the FLSA does not do is require employers to limit employees’ hours to 40 hours per week or any maximum limit for the that matter. The FLSA does not prevent employers from changing an employee’s schedule even at that last minute to require them to stay past the end of a scheduled shift. And, if an employee refuses to work overtime or passed the end of a scheduled shift, the employer is well within its rights to fire that employee without being at risk for a wrongful termination claim. Remember, in 49 of the 50 states employment remains at will, which means that an employer can fire you for any reason – even an unfair reason like not staying past the end of your shift – as long as that reason is not contrary to law. (Best Law Read: What Does Employment At-Will Mean?; How Much Proof Does My Employer Need To Fire Me?).
So, in summary, your job can ask you to stay on the clock to work late, but not stay late off the clock. Your boss cannot physically make you stay but can fire you if you don’t. It might not be fair, but that is as far as the law goes.
What should I do if my employer is not paying me overtime pay for staying late every day after my shift?
Best Ohio Wage Theft Attorney Answer: Get help from a qualified wage and hour attorney (not some poster on social media). The FLSA is tricky and complicated. Even the overwhelming majority of lawyers have never dealt with the FLSA. If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. The experienced wage and hour lawyers at Spitz will provide you with the top options for your overtime pay dispute situation. (Read: What is the Spitz No Fee Guarantee?) If you even think that you may be entitled to overtime pay that you are not being paid, call our Ohio, Michigan and North Carolina attorneys right now. Do not wait. The longer that you wait, the less that your claim may be worth.
The FLSA materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me overtime each day if I stay beyond the time on the schedule”, “My paycheck is missing time that I worked” or “What do I do if I was fired today for not staying late,” the your best option is to contact an experienced overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.