Is makeup time available to employees working an alternative workweek?
Yes, in some instances!
Section 513 of the California Labor Code spells out the criteria for makeup time: “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 towards computing the total number of hours worked in a day” for overtime computation.
It should be noted that the section does require the payment of overtime for hours in excess of 11 in one day and 40 in the workweek. Of course, the 11-hour daily limit would prevent the use of makeup time in a health care industry 12-hour day alternative workweek.
Thus, while the section does not prohibit the use of makeup time for employees working an alternative workweek, the usage is far more limited than for employees not working an alternative workweek.
For instance, an employee on a four 10-hour day alternative workweek, who needed to take five hours off one day, would have only one hour each of the next three days to make up that time without an overtime liability.
Wage Order Flexibility
Better flexibility is provided in Section (B)(1) of the Industrial Welfare Commission orders dealing with alternative workweeks. That section provides that nothing shall prohibit an employer, at the request of an employee, to substitute one day of work for another day of the same length on an occasional basis to meet the personal needs of the employee without the payment of overtime.
If an employee on a four 10-hour day alternative workweek misses a day, he/she can request to work another 10-hour day, outside the schedule as a substitution, without any overtime liability.
The last paragraph in Labor Code Section 513 does prohibit employers from encouraging or otherwise soliciting employees to request makeup time to avoid the payment of overtime. It should also be noted, however, that an employer is not required to allow either makeup time or substitute days.
The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.