Friday, February 3, 2023

Previously Worked Overtime Can’t Be Counted as Makeup Time

herman_gary_SMCan an employee use makeup time if he or she misses a day of work and submits a written request to use overtime previously worked in that workweek to pay for the missed day?

No! Section 513 was added to the California Labor Code in 1999. That code section provides: “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 purposes of the overtime requirements….”

Request in Writing

The section requires that an employee shall provide a signed written request for each occasion that the employee asks to make up work pursuant to this section.

Finally, it should be noted that an employer is prohibited from encouraging or otherwise soliciting an employee to request makeup time.

Although an employer is not obligated to grant the written request, the granted written request precludes the employer from overtime liability for up to 11 hours in a day and 40 hours in the workweek.

Ask in Advance

Even though the statute does not specifically require the request in advance, that appears to be the clear intention of the law.

Indeed, the Labor Commissioner’s Enforcement Policy and Interpretations Manual specifies that the written request by the employee is to make up time that “would be” lost by the employee due to a personal obligation.

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

Staff Contact: Gary Hermann

Gary Hermann
Gary Hermann
Gary Hermann joined the CalChamber in 2004 as an HR adviser. He previously worked for the Division of Labor Standards Enforcement for 26 years as a hearing officer, senior deputy labor commissioner and regional manager. His experience included processing wage claims, conducting investigations, staff development training and supervising 100 employees in nine district offices. He holds a J.D. from the University of Oregon.

Related Articles

California Laws Generally Apply Only within Borders of State

Since the pandemic, my company has been allowing employees to work from home. Without informing our human resources department, several of these employees have moved to other states. Now that these employees are living...

4 Job Killer Bills Stopped, 1 Tax Bill Stalled

California Chamber of Commerce policy advocates working alongside advocates from allied business groups succeeded in stopping four CalChamber-job killer bills from advancing in the Legislature this year. One of these job killer bills has...

California Holiday Pay, Time Off Rules

In Episode 140 of The Workplace podcast, CalChamber employment law experts Matthew Roberts and Bianca Saad discuss California holiday wage and hour issues, including holiday pay, policy best practices, employees calling out sick, and...