Can 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 hrcalifornia.com.