Eliminating Forced Overtime: A Right's Based Analysis

Many folks, especially in the United States, are unaware of the way that the workplace impacts our fundamental human rights, per the United Declaration of Human Rights. With current discussion on burnout, trauma, and workplace wellness, I figure it's time to bring my essay on overtime (circa 2018) to LinkedIn, with some formatting changes.

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In 1938 the Fair Standards in Labor Act was approved after years of contention regarding progressive labor reform attempts, many of which were struck down by the Supreme Court in the decade before the FSLA (Grossman, 1978).

At the time there was the same tug and pull that we see today between employers who do not wish to implement and enforce new standards and regulations, and groups who advocate for progressive workplace laws. President Roosevelt was one of these advocates, originally passing 1933’s National Industrial Recovery Act, which set multiple high bars for wages, child labor, and limited the workweek to between 30 and 40 hours, but was soon after ruled unconstitutional (Grossman, 1978).

The FSLA was ultimately less progressive than NIRA, but did still implement a minimum wage, attempt to eliminate unethical child labor, and created the definition of a workweek. To this day, any federal adjustments to overtime, the workweek, or minimum wage happen by amending this piece of legislation. The Department of Labor (2016) quickly summarizes the current state of the act, saying:

 “Covered, nonexempt workers are entitled to a minimum wage of $7.25 per hour effective July 24, 2009. Special provisions apply to workers in American Samoa and the Commonwealth of the Northern Mariana Islands. Nonexempt workers must be paid overtime pay at a rate of not less than one and one-half times their regular rates of pay after 40 hours of work in a workweek.”

However, the FSLA puts no explicit limits working hours, resulting in what is commonly referred to as “mandatory” or “forced” overtime. This is when an employer requires workers to work overtime or risk retributive acts, such as reducing hours, demotion, loss of job, etc. Forced overtime violates multiple human rights and, due to the extent of the problem and deep detrimental impact, some states have begun to implement their own restrictions on how much an employee can work in a week, and whether or not an employer can retaliate against an employee unwilling to work overtime. In order to best ensure rights for all our citizens, though, the Fair Standards in Labor Act (or state legislation if federal change is not feasible) must be amended to make any mandatory overtime an illegal practice. 

In 2002, one study estimated that between 20% and 30% of workers in the United States worked forced overtime (Jorgensen & Golden, 2002). There are unfortunately few updated studies on specifically forced overtime, but studies agree that Americans are working significantly longer hours on the whole.

In 2014, Gallup estimated that more than 40% of workers in the United States were working more than 50 hours a week, 10 hours a week over the definition of a workweek, whereas in 2002 only 20% were working that much (Backman, 2017). There is no evidence to believe that forced overtime has decreased since 2002. Working under the assumption that forced overtime increased proportionally with overtime work overall, then the country would be looking at almost one out of every two people who are being forced into this human rights violation.

And mandatory overtime, to be clear, is a human rights violation in multiple ways, from blatant contradictions with defined rights, to the subtle ways those infractions inflict on other individual and communal rights. To most fully see the impact of the rights violations that mandatory overtime has, one can look at the life of a hypothetical family living in this system. 

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Edith, like almost 10 million other Americans, is a single mother with two elementary school aged children. She works at a warehouse, and makes a good hourly salary for the area -- $20 an hour. Edith lives outside a city, in a place with a middling cost of living. This means that her yearly pay of $41,740 for a standard 40 hour workweek is just enough to keep her family comfortable (Numbeo, 2018).

More often than not, Edith would prefer to spend time with her family and community than earning extra pay through overtime; however, her workplace often mandates overtime. Similar to reports from Amazon warehouses, Edith worked 10 weeks of mandatory overtime last year -- approximately 400 hours (Burgett, 2016). Like 25% of American workers, Edith gets no paid time off, and no paid holidays (Settembre, 2018).

As Edith very rarely wishes to work more than 40 hours, especially as she receives no other time off, this overtime violates Article 7(d) of the International Covenant of Economic, Social, and Cultural rights (1976) and Article 24 of the United Declaration of Human Rights (1948), which both speak to “rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.” (UN General Assembly, 1948).

This is not the only right violated -- even 40 hours a week, a standard workweek in the United States, is longer than appropriate to ensure human rights. Australian researchers determined that working more than 39 hours a week is a risk to health (Dinh, Strazdins & Walsh, 2017). Overtime is correlated to a myriad of health risks including cardiovascular problems and heart disease; burnout and anxiety (Stein, 2018); and a dramatic increase of risk of injury while on the job (Dembe, Erickson, Delbos & Banks, 2005).

All of this means that through violating rights to reasonable working hours, forced overtime also violates Articles 7(b) and 12 of the ICESC, and Article 25(1) of the UDHR, which define the rights of individuals to physical and mental health, as well as safety in the workplace. Together this is more than enough to justify intervention on this practice, but it is also only the beginning of problems posed.

Having to work overtime means that Edith must pay for childcare in the evenings or over the weekends that otherwise she would not need. The average cost for childcare in the United States is around $9000 (Zillman, 2018). Edith paid significantly less than that: $15 an hour for every one of the 400 hours of overtime she had to do. That is $6000, or half of the pre-tax money she made from her mandatory overtime, spent on childcare that she wouldn’t have otherwise purchased.

Edith’s health is also increasingly at risk due to the extra physical and mental stress on her body. Last year she risked her employment four times to see a doctors for severe back pain and anxiety -- a total cost of almost $500 between lost wages and additional copays.

Edith now also has less time to cook dinner for her family, which means they’re eating more takeout and pre-prepared food. While a nutritious meal for a family cooked at home can cost about $4 per person, the average takeout meal is $12.75 (Hamm 2017), meaning that with two fewer home-cooked meals a week Edith’s family is spending almost $1400 extra a year on food.

When all is said and done, Edith’s overtime pay ends up primarily paying for the personal consequences of her forced overtime. This certainly violates at minimum the spirit Article 7(a.i) (1966), which reads: 

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

Approximately 80% of single parents are women (Lee, 2018), and due to the need for additional childcare Edith’s remuneration for her overtime work does not give her the same spending power as it would for a family with multiple guardians. Additionally, remuneration is often thought of as value given from the employer’s perspective; however, from Edith’s perspective, while she may being paid 1.5 times her normal hourly rate, due to the costs associated with longer working hours, each of those extra hours provides less value to her and her family’s life than the hours in her 40 hour week. This means that she is not being fairly compensated for her overtime. 

To further this human rights issue, Edith and her family have less time to spend being able to interact with their community, against Article 15 of the ICESC (1966); little to no time for Edith to decide to form or join a union, violating Article 8 (1966); and less ability for Edith to ensure that her children aren’t experiencing violations of their rights as defined in the Covenant on the Rights of the Child. 400 hours a year, or on average about eight hours a week, may not seem like much to some, but Edith and the millions of people in situations similar to hers have had, and are having, almost a dozen if not more of their fundamental human rights violated. 

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In response to this widespread issue, several states have begun to regulate how much, or when, forced overtime is allowed. James Phillips (n.d) compiles some of the current laws, saying, 

“Illinois, New York, Texas and Wisconsin have a "Day of Rest" law that mandates 24 hours off per week for certain jobs. Sixteen states have passed laws regulating mandatory overtime caps specifically for nurses, and Minnesota also restricts the number of hours certain railroad employees can work.” 

California has some of the most progressive adjustments to overtime work and pay, requiring double pay for overtime past 12 hours a day, and calculating overtime at more than 8 hours per day, rather than more than 40 hours per week. California is also the only state that caps the amount of overtime an employer is allow to force an employee to work: 72 hours a week. (Labor Standards Enforcement, 2018).

California’s “progressive” laws still mean that if an employer is willing to take the hit to cost, they can legally force an employee to work 3744 hours a year, which is 1657 hours -- 207 working days days, 41 working weeks -- more than Edith was compelled to work, with that much more risk to wellbeing. This piecemeal attempt to make forced overtime slightly more tolerable does not sufficiently address the scope of the problem, not to mention that the rights impact now varies state by state.

It is tempting to say that the right direction to go would be to amend the FSLA to limit the workweek to 39 hours -- the limit for not risking health. Sadly, though, this would be a dangerous path. There are no states where a family can reasonably afford a one bedroom apartment working only 40 hours a week at minimum wage (National Low Income Housing Coalition, 2018). Many families, thus, are reliant on overtime work in order to make ends meet. The fact that basic needs necessitate overtime work is a massive rights violation in and of itself, but until those rights are met through improved minimum wage and welfare policies, implementing an absolute cap on the workweek could have devastating unintended consequences.

Instead, a first step is to amend the FSLA to make forced overtime illegal. California’s law begins to set precedent for this, by making it illegal to retaliate against an employee who rejects more than 72 hours of forced overtime. Instead, this should be curtailed to 40 hours, disallowing retribution against any employee for refusing any amount of overtime.

It can be difficult to amend the FSLA. President Obama tried to increase the number of people eligible for overtime in 2016, and the case for passing the rule change is still pending (Miller, 2018). While forced overtime affects people across the political spectrum, a business-friendly federal legislature will be unlikely to amend the FSLA to disallow forced overtime. This means that there must first be focus at the state level.

Beginning at smaller levels with legislation like this is common and can be very successful. Take for example the legalization of marijuana, which began on state levels with medical marijuana in 1996, and has increased to be recreationally legal in multiple states with federal legislation for legalization proposed as well. If there can be successful advocacy in the states that already have some restrictions on forced overtime to fully eliminate the practice, then there can be more and improved advocacy in all other states to begin implementing these policies, which can force the federal government to seriously consider this amendment to the FSLA. 

There are no rights, in any human rights document, that say that corporations have a right to profit, and there certainly is no corporate right to violate the actual human rights of their employees. Thus, there is no point at which it is just for an employer to threaten an individual’s right to employment if they refuse to work more than a standard workweek.

From a rights-based perspective forced overtime, or forced infliction on an employee’s and their families rights, should be explicitly disallowed. Doing so will help ensure entitlements to tens of millions of Americans and their families, dramatically improving their quality of health and life. 

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References

Backman, M. (2017, June 20). Here's a new reason to work fewer hours. Retrieved from

https://money.cnn.com/2017/06/20/pf/work-hours/index.html

Burgett, J. (2016). Mandatory Overtime, Families. Retrieved December 16, 2018, from

https://amazonemancipatory.com/mandatory-overtime-families

Cost of Living. (2018). Retrieved December 16, 2018, from

https://www.numbeo.com/cost-of-living/region_rankings.jsp?title=2018region=021

Dembe, A. E., Erickson, J. B., Delbos, R. G., & Banks, S. M. (2005, March 8). The impact of overtime and long work hours on occupational injuries and illnesses: New evidence from the United States. Retrieved from https://oem.bmj.com/content/oemed/62/9/588.full.pdf

Dinh, H., Strazdins, L., & Walsh, J. (2017, January 18). Hour-glass ceilings: Work-hour thresholds, gendered health inequities. Retrieved December 16, 2018, from https://www.sciencedirect.com/science/article/abs/pii/S027795361730031X

Grossman, J. (n.d.). Fair Labor Standards Act of 1938:Maximum Struggle for a Minimum Wage.

Retrieved December 16, 2018, from https://www.dol.gov/oasam/programs/history/flsa1938.htm#6

Hamm, T. (2017, October 18). Don't Eat Out as Often (188/365). Retrieved December 16, 2018, from https://www.thesimpledollar.com/dont-eat-out-as-often-188365/

Jorgensen, H., & Golden, L. (2002, January 1). Time After Time: Mandatory Overtime in the U.S.

Economy. Retrieved December 16, 2018, from https://www.epi.org/publication/briefingpapers_bp120/

Labor Standards Enforcement. (2018). Overtime. Retrieved December 16, 2018, from

https://www.dir.ca.gov/dlse/faq_overtime.htm

Lee, D. (2018, July 05). Single Mother Statistics. Retrieved December 16, 2018, from

https://singlemotherguide.com/single-mother-statistics/

Miller, S. (2018, March 14). Overtime Rule Changes Are Coming, but Will They Be in Time? Retrieved December 16, 2018, from https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/overtime-rule-changes-coming.aspx

National Low Income Housing Coalition. (2018). Out Of Reach. Retrieved December 16, 2018, from https://nlihc.org/oor/

Phillips, L., James. (n.d.). Forced Overtime Laws. Small Business - Chron.com. Retrieved from https://smallbusiness.chron.com/forced-overtime-laws-60483.html

Settembre, J. (2018, August 16). A shocking number of US workers get no paid time off. Retrieved from https://nypost.com/2018/08/16/a-shocking-number-of-us-workers-get-no-paid-time-off/

Stein, L. (2018, January 20). Mandatory Overtime. Retrieved from https://consumer.healthday.com/encyclopedia/work-and-health-41/occupational-health-news-507/mandatory-overtime-647119.html

The United Nations General Assembly. (1966). International Covenant on Civil and Political Rights. Treaty Series, 999, 171.

UN General Assembly. (1948). Universal declaration of human rights (217 [III] A). Paris.

Wage and Hour Division (WHD). (2016, September). Retrieved December 16, 2018, from

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Zillman, C. (2018, October 22). Childcare Costs More Than College Tuition in More Than Half of

U.S. States. Retrieved from https://fortune.com/2018/10/22/childcare-costs-per-year-us/