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Exceptions to the California Daily Overtime Laws

Daily overtime

California labor laws are a little different from federal labor laws. For example, California has daily overtime laws in addition to weekly overtime. So even if employees’ weekly hours don’t exceed 40, they will get overtime pay after 8 hours of work in a single day. This law protects employees from overwork. This is an important protection, but sometimes working longer daily shifts is just convenient. Some employees prefer working four 10 hour shifts, for example, instead of five 8 hour shifts.

And, if employees must be paid overtime for each minute they work in excess of 8 hours in a day, what do they do when they have to attend to personal errands during working hours? If an employee needs to pick up his sick kid after only working 6 hours, he would probably like to make up for that missed time on the next day but, obviously, that would tip him into overtime.

Luckily, the California labor board recognizes that sometimes daily overtime isn’t overworking and that it is beneficial for employees to sometimes work more than 8 hours in a day. The two exceptions I am referring to are, specifically:

  1. California makeup time
  2. Alternative work-week schedule

Makeup Time

The makeup time rule was designed as a convenience for employees. It is not to be abused by the employer to get out of paying overtime. To protect employees, there are some rules surrounding this daily overtime exception.

  1. Employees must provide a written request each time the employee wishes to forgo overtime.
  2. The employer may inform the employee of the option but cannot encourage it.
  3. Employees must make up the time in the same week they took off time.
  4. Overtime will incur after 11 hours on the makeup day or after 40 hours in the workweek.
  5. Normal daily overtime applies for all days not related to the makeup day.

From the Department of Industrial Relations website:

“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 toward computing the total number of hours worked in a day for purposes of the overtime requirements, except for hours in excess of 11 hours of work in one (1) day or 40 hours of work in one workweek. If an employee knows in advance that he/she will be requesting makeup 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 makeup 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 work time pursuant to this section. While an employer may inform an employee of this makeup 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 one interesting thing about this exception is that since the time must be made up in the same week, then an emergency at the end of the work-week cannot be made up at all. There is no way around that, however, if the employee knows in advance that he/she will need time off on Friday, the employee can makeup the time earlier in the week.

What happens if employees change their minds about the personal time later in the week and decide not to take it? If they have already worked the makeup day on Tuesday, say, does the employer have to pay overtime for that day? The answer is no.

“Is the employer liable for the extra hours worked over eight hours on Monday? According to a Division of Labor Standards Enforcement opinion, the answer is: No. The employer is not liable for daily overtime for the makeup time that was worked on the Monday as long as the employee did not end up working more than 11 hours that workday or 40 hours in the workweek.” – CalChamber

Alternative Work-Week Schedule

Regular, non-health care employees, are permitted, in California, to work four 10 hour shifts as a regular schedule without incurring daily overtime for those first 10 hours. This means that employees and employers can come to an agreement to create an alternative workweek. The agreement must be put in writing. Time and a half does accrue as normal after the first 10 hours up to 12, and after 40 hours in a week. As per California overtime laws, double time must still be paid for any time worked in excess of 12 hours in one day.

There are several caveats to this law and it would be a good idea to review the literature before instituting the schedule. For example this is one of many points laid out in section 5 on the Alternative Schedule:

“(B) If an employer whose employees have adopted an alternative workweek agreement permitted by this order requires an employee to work fewer hours than those that are regularly scheduled by the agreement, the employer shall pay the employee overtime compensation at a rate of one and one-half (1½) times the employee’s regular rate of pay for all hours worked in excess of eight (8) hours, and double the employee’s regular rate of pay for all hours worked in excess of 12 hours for the day the employee is required to work the reduced hours.”

That is, if an employer agrees to the 10 hour work-week, the employer must stick to it or pay overtime like everyone else.

 

Track daily overtime with Timesheets.com.

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18 Comments

  1. Jae
    Jae October 29, 2018

    What about Agricultural Workers? They work up to 10 hours a day, 6/Days – 60 hours a week before overtime kicks in.

  2. Nancy
    Nancy August 30, 2019

    Can a part time employee in healthcare be on a alternative work-week schedule?

    • timesheets_blog
      timesheets_blog September 6, 2019

      That’s a great question! I don’t know the answer to that. I would think an HR expert might have an answer, but it sounds like it could be a ‘gray area’ question. One not specifically mentioned in the law. That would be my guess.

  3. Dan
    Dan November 12, 2019

    What about 9 hours a day with three days off in one week then one, eight hour day and four nine hour days the following week alternating every other week?

    • Lindsay Sommers
      Lindsay Sommers November 13, 2019

      Are you asking if your schedule counts as an alternate schedule? If so, you’re going to have to speak to your employer about your status. Depending on what industry you’re in, you may have different orders than those in healthcare, construction, etc.

  4. Joyce Stricker
    Joyce Stricker April 22, 2020

    Hello
    Need some professional help lol sounded bad but on the serious side – I answer phones for a living – I own and operate an Answering Service. Since the Coronavirus our calls have dropped leaving us so bored we can hardly stay at work. We have as a group voted for the four 10 hour. Allows us to only come to work 4 days instead of 5 we want this. My accountant said know however I’m not forcing anyone’s hand. If was a vote after thinking about it. It would still give us coverage and reduce the numbers of employees used in a single day. Allowing us to work 4 instead of 5 days in the coronavirus as we are essential. In California

  5. Rocio
    Rocio June 17, 2020

    If I am part of a union does the union rep speak for me or what say do I have? My job just switched to an alternative schedule but was not made aware till the day I showed up. Was there something I needed to sign as a way of agreeing?

    • Lindsay Sommers
      Lindsay Sommers June 18, 2020

      Under the NLRB, you have fair representation; however, you do have a representative for your union. For more information about your rights and process, you’ll have to contact your labor office directly.

  6. Celeste
    Celeste June 29, 2020

    I work in the dental field and my Department of three people work 3 to 4 – 8 hour days and 1-10 hour day. On the eight hour days anything over eight hours is overtime and on the 10 hour day anything over 10 hours is paid overtime. Or .. anything over 40 hours in the week is overtime…We have never discussed “an alternative work week.”
    should that 10 hour day be paid overtime after eight or 10 hours ?

    • Lindsay Sommers
      Lindsay Sommers July 2, 2020

      You’re going to have to speak to your HR department about your alternative workweek. If your company doesn’t follow those certain requirements, then yes– you should earn 1.5X after 8 hours in a day.

    • Stephen Heil
      Stephen Heil October 27, 2020

      I work 4 ten hour days and do not get overtime after 8 hour. It states that you waive the overtime because you get an extra day off. Since I take call and usually work on my day off, am I then eligible to get time and a half for all hours after 8 hour on my tens?( I technically don’t get an extra day off with call).

  7. Dave
    Dave July 16, 2020

    My company was on a 4/10 schedule. Recently, they cut the full time worker’s to 3/10 schedule, due to lack of production. Can they do that and keep their exempt status?

  8. Dave
    Dave July 16, 2020

    Sorry, I meant can they keep there 10 hour workday status.

  9. Memo Ganir
    Memo Ganir August 17, 2020

    If a workday is considered from the start of a shift and 24 hours there after is it legal for a company to not pay over time on a shift beginning at 8 p.m. and ending at 8 a.m.? There reasoning is because it is 2 separate days…please advise.

    • timesheets_blog
      timesheets_blog August 19, 2020

      The company can under certain conditions not pay overtime if the day is split at midnight or some other hour. If that’s the normal time they split days, then it sounds normal. What they shouldn’t do is adjust the day start each pay period to their advantage. It should be the same from pay period to pay period.

      • Nom
        Nom August 23, 2020

        Timesheets, you are describing a split shift, while I think the OP is describing a 12 hr consecutive shift that happens to stretch across midnight. If I’m reading the OP’s message correctly, then the company should be paying 4 hours of overtime per shift. The OP’s work day should have nothing to do with the calendar day.

  10. edwin santiago
    edwin santiago September 26, 2020

    I have the same question and about the 12 hrs straight from 1800 – 0600.
    I was not paid overtime after 8 hrs and because HR to said it was a split day shift,
    but how come they pay overtime for a different shift starting from 1600- 0200?
    Your thoughts ??
    Thank you

    • Lindsay Sommers
      Lindsay Sommers September 30, 2020

      Your shift on that specific day may have been at the start or end of you workweek, which is why you may have not earned overtime. Let’s say that the end of your workweek is at 11:59pm on Sundays and starts back up on 12:00am on monday… if you work 8pm-2am on sunday night through monday morning, 4 of those hours would count as hours worked on sunday and 2 of those hours would count towards the next week’s pay. I don’t know what exactly is going on in your situation, but I assume it’s something similar to what I described. I suggest speaking with your HR department and have them clearly explain to you what when on during that shift.

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