One reader asked what the rules are regarding makeup time.
It should first be noted that there are two different Labor Code provisions employers and employees need to know. Labor Code §204.3 regarding Comp time allows an employee to work more hours in one workweek and take the time off (at time and one-half) at a later date. This is different from the makeup time provisions of Labor Code §513, which allows an employee to work extra time in one day and make it up with time off (in an equal amount of time) during the same workweek.
Comp Time
Labor Code §204.3 allows an employee to compensating time off under certain circumstances in lieu of overtime compensation. First, the comp time must be at one and one-half times the employee’s regular rate. In other words, if the employee should be paid one hour of overtime, the employee must receive one and one-half hours of comp time.
Second, there must be a written agreement between the employer and the employee, or in a collective bargaining agreement, allowing comp time before the employee accrues the comp time. The employee cannot accrue more than 240 hours of comp time.
Finally, the employee must request the use of comp time in writing. Upon discharge from employment, any unused comp time shall be paid at the employee’s current rate of pay, or the average of the employee’s regular rate over the last three years, whichever is greater.
Employees can require the employer pay the comp time in cash for any accrued comp time over the preceding two pay periods. Industries under IWC Orders Nos. 1, 3, 8, 10, 13, and 14 cannot use comp time (industries handling products after harvest or preparing agricultural products for market on the farm, industries in the canning, freezing, and preserving industries, industries affecting public housekeeping and amusement and recreation industries, and the manufacturing industry.)
The Labor Commissioner has issued the following Caveat regarding comp time:
The provisions of Section 204.3 are patterned on provisions found in 29 U.S.C. §207(o). It should be noted that these compensatory time provisions are only applicable under the federal law to state and local government employees; the compensating time provisions under federal law are not applicable to employees of private employers. Any employer utilizing the provisions of Section 204.3 should be advised of this caveat as use of the compensating time provisions of the state law may result in violation of the federal law.
In other words, while a private employer can adopt a comp time plan under California law, if the employee works more than 40 hours in the workweek, the employer may owe the employee overtime pay under the Fair Labor Standards Act.
Makeup Time
Labor Code §513 states:
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 specified in Section 510 or 511, except for hours in excess of 11 hours of work in one day or 40 hours in one workweek. An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this section. An employer is prohibited from encouraging or otherwise soliciting an employee to request the employer’s approval to take personal time off and make up the work hours within the same week pursuant to this section.
This Labor Code section is incorporated into each of the IWC Orders except 14:
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 make-up work time, if performed in the same workweek in which the work time was lost, may not be counted toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of eleven (11) hours of work in one (1) day or forty (40) hours of work in one (1) workweek. If an employee knows in advance that he or she will be requesting make-up time for a personal obligation that will recur at a fixed time over a succession of weeks, the employee may request to make-up work time for up to four (4) weeks in advance; provided, however, that the make-up work must be performed in the same week that the work time was lost. An employee shall provide a signed written request for each occasion that the employee makes a request to make up a work time pursuant to this section. While an employer may inform an employee of this make-up time option, the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer’s approval to take personal time off and make-up the work hours within the same workweek pursuant to this section.
The Makeup Time exception requires:
- Written request by the employee to make up time which would be lost by the employee due to a personal obligation
- Makeup hours worked in one day may not exceed eleven (11) nor, of course, may the number of makeup hours worked in one workweek exceed forty (40).
- Request may be made for makeup time for a recurring personal obligation which is “fixed in time over a succession of weeks” provided a written request is made every four (4) weeks.
- Employers are prohibited from soliciting or encouraging employees to make a request for makeup hours, but informing employees of this right is permitted.
Original article by Robert E. Nuddleman of Phillip J. Griego & Associates
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I’m not sure I agree with your statement that a private employer can adopt a comp plan under California Law. As you referenced the appropriate section of the DLSE Enforcement Manual, it clearly states that “compensating time provisions are only applicable under the Federal Law to state and local government employees; are not applicable to employees of private employers. I’ve been told by other employment law attorneys that Cal L.C. 204 doesn’t apply to private employers. I could not find any case law that would support allowing a private employer to have a compensating time off policy. Thank you.
Labor Code Section 204.3, which contains California’s Compensation Time Off rules, does not limit itself to state and local government employees. I understand the Labor Commissioner has taken the position that private employers may not be able to utilize a Comp Time plan, but I think their logic is faulty. The Labor Commissioner reasons that because 29 U.S.C. §207(o) only applies to state and local government and since Labor Code Section 204.3 is patterned after that section, Labor Code Section 204.3 should only apply to state and local governments also.
This argument does not hold water because: 1) Nothing in Labor Code Section 204.3 limits its application to public employers, and 2) Labor Code Section 220 specifically exempts county, city, town or municipal employees from sections 200 to 211 of the Labor Code which would include Labor Code Section 204.3 and says “All other employments are subject to these provisions.”
What is important about the Labor Commissioner’s warning is that even if the private employer is still obligated to pay overtime premium for any hours in excess of 40 in a week. The FLSA’s comp time provision only applies to public employees, therefore a private employer cannot take advantage of the federal comp time provision. Therefore, although the private employer may have a viable comp time plan under California law, the employer would not have a viable comp time plan under federal law.
Of course having said that, I think comp time plans are a bad choice. They are rarely done correctly and can be an accounting nightmare.
I am always interested in other viewpoints, so thank you very much for your comment.
Rob Nuddleman
I believe the make-up time is up to 11 hours in one day, what if the employee work 15hours in one day for the make-up time lost? Should employers pay employees from the the 12th to 15th hour as 1.5 times reg. pay and the time over the 15th hour as double time? Or do employers treat the time from 11th to 12th hour as 1.5 times reg. pay and the time over the 12th as double time?
Jenny, that’s an interesting question and one I had not come across. The way the statute is written, hours up to 11 hours a day do not count toward the maximum weekly or daily overtime when the employee is using the makeup time provision of Labor Code Section 513. Arguably, the first 11 hours would be at straight time, hours 12 through 15 would be at time and one-half, and anything over 15 would be at double-time.
I believe this would be correct because Labor Code Section 513 says that makeup hours are not counted toward the total number of daily or weekly hours worked under Labor Code Section 510 and 511. Section 510 is the overtime provision that says anything over 8 hours in a day is overtime and must be paid at time and one-half the regular rate of pay and anything over 12 hours in a day must be paid at two times the regular hourly rate. You’ll note that Labor Code Section 510 does not refer to “double time.” It only refers to time worked in excess of particular hours.
would you not earn comp time in california for any time worked over 8 hours based on a 5 day 40 work week? Or do you have to work over 40 hours before you earn comp time?
Comp time, if provided in your particular circumstances, begins to accrue any time you work more than 8 hours per day
or
40 per week.
If my employer requires me to work an extra eight hours in one week, can they force me to take eight hours of comp time during the same week?
Shayla,
While an employer may not be able to “force” you to take comp time, the employer can modify your schedule at its discretion. For example, if your normal work schedule is Monday through Friday, and the employer makes you work Sunday, the employer could tell you that you are not working Friday. The employer could then give you the choice of using accrued vacation, PTO or possibly comp time.
As mentioned above, Comp Time is a bank of time for when you work overtime hours that allows you to accrue the extra hours as Comp Time. The extra hours must accrue at 1.5 times the regular rate so that if you work one hour of overtime you accrue 1.5 hours of Comp Time.
This is different from Make-Up time. Keep in mind that Make-Up time is supposed to be used at the employee’s request. In fact, most applicable Wage Orders provide: the employer is prohibited from encouraging or otherwise soliciting an employee to request the employer’s approval to take personal time off and make-up the work hours within the same workweek pursuant to this section.”