Question: My employee took a few hours off earlier in the week for an appointment and is now asking if she can make up that time on another day this week.  Since she works 8-hour days, if I approve her request, this will push her into overtime.  Is there a way to avoid those overtime obligations in this situation?

Answer: When implemented properly, employers can allow employees to make up lost work time without incurring overtime.  Generally, if a non-exempt employee works over 40 hours during a workweek or over 8 hours in a single workday, the employee must be paid overtime compensation.  However, “makeup time” provides an exception to the overtime requirements, allowing scheduling flexibility for employees.  California Labor Code Section 513 permits an employer to adopt a makeup time policy and approve employee written requests to make up work time lost because of the employee’s personal obligations.  The employee makes up the time by working those hours on another day in that same workweek.  The makeup time will not count as daily overtime if it causes an employee to work more than 8 hours in a workday, so long as the makeup time is worked in the same workweek in which the work time was lost, and the employee does not work more than 11 hours in one day or 40 hours in one workweek.  Employees must submit in advance a signed written request for each occasion that the employee wishes to make up lost work time.  Employers cannot encourage or otherwise solicit employees to use makeup time, and they have discretion to deny a request.

For example, if an employee who normally works Monday through Friday, 8 hours per day, requests 3 hours off on Tuesday to go to a personal appointment, the employee can then make up the time by working 11 hours on another day that workweek, or by working 1 extra hour on Wednesday, Thursday, and Friday, all without accruing overtime.  Time records should specify what hours are makeup time and what hours, when applicable, are overtime.  When determining how to properly categorize hours worked, employers must follow their definition of a workweek.

If employers choose to allow makeup time, they must have a written policy that complies with the requirements of Labor Code section 513 and sets out clear instructions and requirements for employees.  Employers should consider the following when implementing a makeup time policy:

  • Make clear to employees that all makeup time requests must be in writing and submitted for approval in advance.
  • Determine the amount of advance notice required for makeup time requests.
  • Determine how to handle situations where an employee takes time off and requests makeup time, but then cannot make up the time.  Will the time off be unpaid, or will sick or vacation time be applied?
  • Verify your Company’s definition of a workweek.  If an employer does not have a defined workweek, the state Labor Commissioner will presume it is Sunday through Saturday from 12:01 am to midnight.
  • Decide whether there will be a limit on employees’ use of makeup time to avoid overtime liability.

Employers should also prepare the written request form that must be filled out each time an employee wishes to request makeup time.

By following these rules, employers can allow employees some flexibility for personal obligations during the workweek and avoid incurring overtime.