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Waive FLSA Overtime Requirement (Illinois)

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  • Waive FLSA Overtime Requirement (Illinois)

    Hello. First post! Now you may think I'm crazy, but I was wondering how to legally waive my FLSA-mandated right to "off the clock" pay (since under FLSA, I cannot volunteer to work off the clock without being paid).

    I am a full-time (40 hrs/week) hourly employee of a company, which has a specific policy of no working "off the clock." And if you are caught working off the clock, you can be subject to disciplinary action. This policy is undoubtedly meant to satisfy FLSA requirements and to prevent any potential legal actions arising from failure to provide overtime pay whether the work is "voluntary" or not.

    Now here's the shocker. Although I understand the reasoning behind the protections afforded by the FLSA, I want to know if it's theoretically (if not practically) possible to waive my right to pay rendered for work performed off the clock. In my case, such work would theoretically qualify for overtime pay, since in a given week, I typically work the maximum number of hours allowed.

    But, I DON'T mind working off the clock. At the same time, I do not wish to violate FLSA and company policy. Catch-22? It seems ludicrous that I cannot volunteer my services off the clock without being hampered by a federal law's blanket intent to provide fairness and justice in the workplace. I completely understand the arguments against the enforceability of any private waivers, since allowing such practices would effectively punish companies who do comply with FLSA rules and regulations. But I -- the employee -- am the one who wants to initiate this waiver of my right to off the clock / overtime pay.

    Obviously, though, I don't want aforementioned waiver to act as a legal tool for my employer to require me to "off the clock," or punish me if such overtime services are not rendered. When I wish to work off the clock, I'd like to be able to. If I'm not feeling so charitable, I don't want to be forced to.

    After some brief research on the topic, I've discovered that a waiver of FLSA right(s) may be enforceable if the waiver or release is supervised by a court or by the U.S. Dept. of Labor. Would this apply in my scenario? If so, how does one go about doing this in the state of Illinois? Does it have to involve the elaborate trappings of legal proceedings (i.e. expensive lawyers, having legal representation physically show up in court and convince a judge that such a waiver has been given due consideration by both parties with the unintended consequences understood, etc?). If so, that would probably be a deterrent enough for my employer to refuse such an unorthodox proposition in the first place.

    Or can a waiver be more simply drawn up and then rubber-stamped by a certified judge?

    At the end of the day, I just want to be able to work "off the clock" without violating the law. Is this practical, or do I have to bow to the idea that this legislation was designed to protect societal workers at large -- and that I have no reasonable recourse to refuse what's good for I, the worker!


  • #2
    You have no reasonable recourse. Your employer, not you, is the one who would be fined if the DOL were to take issue with your working off the clock, and in the unlikely event that "but I don't mind working off the clock and it was my idea" is considered a valid reason to invoke a waiver, it WOULD be a long, drawn out process.

    There simply is no legal way a non-exempt employee can work without being paid for it.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


    • #3
      Can an employee waive the right to overtime pay?

      NO. The overtime requirement may not be waived by agreement between employer and employee. This would fail the test of the FLSA compliance.
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      • #4
        Agreed. Per federal DOL.

        Overtime Pay May Not Be Waived: The overtime requirement may not be waived by agreement between the employer and employees. An agreement that only 8 hours a day or only 40 hours a week will be counted as working time also fails the test of FLSA compliance. An announcement by the employer that no overtime work will be permitted, or that overtime work will not be paid for unless authorized in advance, also will not impair the employee's right to compensation for compensable overtime hours that are worked.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)


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