Exceptions to the California Daily Overtime Laws

In California, employees get overtime after 8 hours of work in one day. This is a law that the California government put into place to protect employees from being overworked. Time and a half both deters employers from overworking employees and makes the extra work worth it to employees when they do have to do it.

It’s obviously nice for employees to get a higher rate of pay when they work hard but the rule could get in the way of other conveniences. For example, what do employees do when they prefer working four 10 hour shifts instead of five 8 hour shifts? And, if employees must be paid overtime for each minute they work in excess of 8 hours in a day, what do they do when they have to attend to personal errands during working hours? If an employee needs to pick up his sick kid after only working 6 hours, he would probably like to make up for that missed time on the next day but, obviously, that would tip him into overtime.

Luckily, California realizes that some circumstances don’t constitute overwork and that it is beneficial for the employee to sometimes work more than 8 hours in a day. The two exceptions I am referring to are, specifically:

  1. California makeup time
  2. Alternative work-week schedule

Makeup Time

The makeup time rule is meant to be convenient for employees. It is not to be abused by the employer to get out of paying overtime.

To protect employees, there are some rules governing this exception.

  1. There must be a written request each time an employee wishes to forgo overtime and makeup time missed for personal reasons.
  2. The employer may inform the employee of the option but cannot encourage it.
  3. The time must be made up in the same week that the time was missed.
  4. Overtime will incur after 11 hours on the makeup day or after 40 hours in the workweek.
  5. Normal daily overtime applies for all days not related to the makeup day.

From the Department of Industrial Relations website:

“If an employer approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee, the hours of that makeup work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of 11 hours of work in one (1) day or 40 hours of work in one workweek. If an employee knows in advance that he/she will be requesting makeup time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make up work time for up to four (4) weeks in advance; provided, however, that the makeup work must be performed in the same week that the work time was lost. An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this section. While an employer may inform an employee of this makeup time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer’s approval to take personal time off and make up the work hours within the same workweek pursuant to this section.”

The one interesting thing about this exception is that since the time must be made up in the same week, then an emergency at the end of the work-week cannot be made up at all. There is no way around that, however, if the employee knows in advance that he/she will need time off on Friday, the employee can makeup the time earlier in the week.

What happens if the employee changes his mind about the personal time later in the week and decides not to take it? If he has already worked his makeup day on Tuesday, say, does the employer have to pay overtime for that day? The answer is no.

“Is the employer liable for the extra hours worked over eight hours on Monday? According to a Division of Labor Standards Enforcement opinion, the answer is: No. The employer is not liable for daily overtime for the makeup time that was worked on the Monday as long as the employee did not end up working more than 11 hours that workday or 40 hours in the workweek.” – CalChamber

Alternative Work-Week Schedule

Regular, non-health care employees, are permitted, in California, to work four 10 hours shifts as a regular schedule without incurring daily overtime for those first 10 hours. This means that employees and employers can come to an agreement to create an alternative workweek. The agreement must be put in writing. Time and a half does accrue as normal after the first 10 hours up to 12, and after 40 hours in a week. As per California overtime laws, double time must still be paid for any time worked in excess of 12 hours in one day.

There are several caveats to this law and it would be a good idea to review the literature before instituting the schedule. For example this is one of many points laid out in section 5 on the Alternative Schedule:

“(B) If an employer whose employees have adopted an alternative workweek agreement permitted by this order requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (1½) times the employee’s regular rate of pay for all hours worked in excess of eight (8) hours, and double the employee’s regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours.”

That is, if an employer agrees to the 10 hour work-week, he must stick to it or pay overtime like everyone else.

The alternative workweek can be easily setup on an individual employee basis within their settings like this:

Alternative overtime settingsAll of the standard California overtime rules apply but, with the customizable settings that we offer, you can set it so that daily overtime does not begin until the 10th hour.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s