Question:

My employees regularly request small increments of time off to fulfill various personal obligations. I want to be flexible with my employees, and I do not want them to be forced to use vacation time or paid time off. I would like to allow employees to make up the missed time on other work days, but I do not want to have to pay overtime. Can I allow employees to make up time while remaining in compliance with overtime laws?

Answer:

If a properly administered system is in place, employers can legally allow employees to make up missed time. Makeup time represents one form of flexibility that California law allows in the overtime arena. However, to remain legally compliant with applicable overtime laws, the employer must have a makeup time policy and create an employee request form. The employer must also adhere to specified requirements, and communicate effectively with its employees.

As you may know, pursuant to California Labor Code Sections 510 and 511, if an employee works over forty hours during a workweek, the employee must be paid overtime compensation. Additionally, if an employee works over eight hours during a single work day, the employee must be paid overtime compensation. Time and a half overtime compensation must be paid for time worked over eight hours in one work day, time worked over forty hours in one workweek, and for the first eight hours worked on the seventh consecutive day of a workweek. Furthermore, double time overtime compensation must be paid for time worked over twelve hours in one work day and for time worked beyond eight hours on the seventh consecutive day of a workweek. These are the general overtime rules applicable to most employers, although some exceptions exist for certain industries.

However, California Labor Code Section 513 and the Industrial Welfare Commission Wage Orders provide a makeup time exception to the law requiring overtime compensation for hours worked during a single work day. Section 513 and the Wage Orders explain that if certain conditions are met, employers can allow employees to take time off for a personal appointment and then make up the missed time. Notably, the makeup time must occur during the same workweek in which the time was missed. For example, if an employee asked to leave work an hour early on Monday, the employee could work an extra hour to make up the time on Friday of the same workweek. To qualify for the exception, the time missed could not be made up during a later workweek.

On the day when the employee works the makeup time, the employee may not work more than eleven hours in that one day or more than forty hours in that workweek without being entitled to overtime compensation. For example, if a full-time employee who works 8-hour days asked to take four hours off on a Tuesday, the employee could not make up all four hours on Wednesday, because this would result in a 12-hour work day, entitling the employee to overtime. But, if the employee took four hours off on a Tuesday, he or she could make up two hours on Wednesday and two hours on Thursday without receiving overtime.

The employer has discretion to deny a request for makeup time. Additionally, employers are prohibited from encouraging or soliciting requests for makeup time. Nevertheless, they may inform employees of the makeup time option.

To comply with the laws explained above, a makeup time policy and request form must be drafted. The form should include a section for the employee to enter the proposed date and time of the time off, and a section for the date and time of the proposed makeup time. Additionally, the request form should clearly state that employees may not work more than eleven hours in a day or forty hours in a workweek as a result of making up time. The request form should also explain the employer’s makeup time policy. Further, the form should state that the employer does not encourage or solicit the use of makeup time. The employee must submit a new form each time he or she requests makeup time.

As a result of the law that allows makeup time, employers may allow employees to make up time they missed to go to a doctor’s appointment or to attend their child’s sporting event without violating overtime laws. Such a policy may strengthen employee morale and result in a more productive workforce. Moreover, by following the law and recommendations explained above, employers can ensure compliance with California overtime laws.
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