Comments on: Makeup Time versus Comp Time

By: Rob

Rob — Fri, 23 Jul 2010 15:52:02 +0000

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.”

By: Shayla Ashmore

Shayla Ashmore — Wed, 30 Jun 2010 19:36:08 +0000

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?

By: Rob

Rob — Mon, 26 Apr 2010 19:58:19 +0000

Comp time, if provided in your particular circumstances, begins to accrue any time you work more than 8 hours per day

40 per week.

By: Geo

Geo — Sat, 17 Apr 2010 15:25:28 +0000

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?

By: Robert Nuddleman

Robert Nuddleman — Fri, 19 Sep 2008 23:00:20 +0000

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.

By: Jenny Weiss

Jenny Weiss — Thu, 04 Sep 2008 22:03:40 +0000

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?

By: Robert Nuddleman

Robert Nuddleman — Wed, 26 Mar 2008 19:18:56 +0000

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

By: K. Starks

K. Starks — Mon, 24 Mar 2008 22:29:50 +0000

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.