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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. Therefore, even if employees’ weekly hours don’t exceed 40, they receive overtime pay after 8 hours of work. This law protects employees from overworking. 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

What is Makup Time?

The makeup time rule was designed as a convenience for employees. An employer may not abuse this to avoid 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 When Employees Change their Minds?

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. These employees will not earn 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 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, employees still earn double time after 12 hours.

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 described 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. If they don’t commit fully to the alternative workweek schedule, they must follow normal overtime rules. You can learn how to caluclate overtime for employees on an alternative workweek schedule in this article.

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  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

    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.

  11. Kelsey
    Kelsey January 7, 2021

    My husband began working at a security company last year (it was his second job and meant to be part-time/1-2 days per week). He had previously worked for this company the year before but due to schedules only picked up 1-2 8hr shifts at a rate of $25/hr. He put in his notice when he couldn’t pick up anymore shifts to find a different job. Jump to recently, he came back to work at this same security company because his Dad also works there and helped him get “rehired” to help financially during this pandemic. Apparently they never destroyed my husbands badge or removed his paperwork so my husband became an employee again after only signing an updated W4.
    Since then we’ve had multiple issues with his pay. After his first few paychecks he noticed he was being paid @ $22/hr instead of $25 as he was told he would be. The owner THEN informed him that his “escort” position is $22/hr and that the $25 is for the guards in the building. Then he noticed he wasn’t being paid for any overtime after 8hrs. When he asked the owner, she informed him that those shifts he works are 10hr days and he doesn’t get overtime under 10 hrs. He never knew about this, there is no signed paperwork, and he only works 1-2 shifts a week.
    Now he gets his last paystub and there is no double time for a shift when he worked 14.5 hours. He is waiting to hear back from the owner so he can get it corrected.

    Is any of this legal? Is he entitled to his originally agreed rate of $25 or at least the overtime on his shifts over 8hrs? Should we contact the CA labor board and file a claim?

    • Lindsay Sommers
      Lindsay Sommers January 12, 2021

      Hi Kesley. Sorry to hear that you’re going through this. First off, your husband should get paid the agreed upon rate. If not, his employer may be obligate to back pay him for all hours that he did not give him his promised rate. Additionally, CA overtime laws are very strict and his employer must comply with overtime rules. If his employer chooses to ignore overtime rules, he may face penalties. I would suggest that you speak with a human resources expert and with the CA labor board. Good luck!

  12. Twweetty
    Twweetty February 8, 2021

    If i and the employer agree to 4 ten hour days a week,but since covid we are no longer open the 10 hours days. Which i told my manager and he agreed to go back to the 8 hour pay schedule,but the owner refuses to pay me over time after 8 hours. What can i do, since i am still work 4 days a week but not working over 9 hours a day. Everyone else on staff is on an 8 hour pay cycle.

    • Lindsay Sommers
      Lindsay Sommers February 9, 2021

      If you’re located in CA as a nonexempt employee, you should get overtime after 8 hours daily. However, if you hold a non-executive, non-administrative, non-professional job, you won’t be eligible for overtime. I’m unsure of the work you’re in, but if you are considered a nonexempt employee and meet the eligibility requirements, your employer must pay you for all hours worked, including overtime.

  13. Adam
    Adam February 21, 2021

    If someone reports 60 hours (10*6) in a week under 4/10 work schedule (CA-NonExempt), how much of his/her hours would be counted as Double Overtime hours?

    • Lindsay Sommers
      Lindsay Sommers February 22, 2021

      When an employee is scheduled to regularly work more than 8 hours in a 24-hour period, that employee is said to have an “alternate workweek schedule”. When a CA employee works an alternative workweek schedule, they get overtime at 1.5x their regular rate of pay after 10-12 hours. After 12 hours, the employee should receive 2x their regular rate of pay. I’m not sure how many hours or days the employee worked, so I wouldn’t be able to give you that answer right now. Did the employee work 6 10-hour shifts?

    • Maria
      Maria June 19, 2021

      I work for a inventory company. And my job site as well as hours are different per job and there are times that my start time is at 7pm and ends at 6am. And because it lands in two different calendar days company says i am not owed overtime .my hours per week can be from 5 to 30 hrs sometimes no hours at all. Also if we get paid 2 different pay wages reg and travel. My local min wage is 15.40 but they say travel gets paid at calif min 14. i wrong thinking i should be paid local 15.40 for travel pay

      • Lindsay Sommers
        Lindsay Sommers June 21, 2021

        Hi Maria, this doesn’t sound correct. If you’re in California, your employer must pay you for all travel expenses incurred and must not pay you anything less than overtime. I suggest that you speak with an HR expert in your area or perhaps an employment lawyer.

  14. Joe
    Joe March 2, 2021

    I work 9 hours for 4 days and 4 hours 1 day. If I happen to work overtime as well as receive paid time off for a pay cycle, it seems I do not get paid in overtime wage for some of the hours worked over 40/week. Instead I get regular pay for a few of those hours. Particularly if I work overtime in the days that are normally 4 hour work days. I would like to know if this is normal in California. Any thoughts/ input would be appreciated.

  15. Jane doe
    Jane doe March 7, 2021

    If I have to work from 4:00 p.m. till 12:00 a.m. and then 12:00 a.m. to 8:00 a.m. to cover somebody else’s shift for 8 hours don’t I get overtime? I was told that because 12:00 a.m. is a new work day that it’s not considered overtime but my entire time I’m going to work will be from 4:00 p.m. until 8:00 a.m. the next morning.

    • Lindsay Sommers
      Lindsay Sommers March 8, 2021

      I don’t know your work policy and I don’t know the time that your workday actually starts, so I can’t give you a solid answer. If your workday started at 12:00am every day and ended at 11:59pm daily, then your 4:00pm to 8:00am shift would technically count as “2 days”, which would alter your overtime calculations. On top of that, employees who work overnight and those who work split shifts have different overtime rules as well. I suggest speaking with your local labor board or speaking with legal counsel to get more insight.

  16. lizzie
    lizzie March 10, 2021

    what if an essential job function of a position is 9hrs? is the 1hr over still considered overtime?

    • Lindsay Sommers
      Lindsay Sommers March 11, 2021

      If you are working in CA, you should earn 1.5x your normal rate of pay after the first 8 hours of your shift, and double time after 12 hours. If you worked 9 hours in a full workday, 1 hour will count as overtime.

  17. Georgina
    Georgina March 17, 2021

    An employee has a 4/10 work schedule M-TH and F as regular off. The employee worked 8 hours overtime on SA and SU. Technically, if the employee works 5/8 schedule and worked overtime on weekends, that is 7 days in a row without a rest day. What is the rule on this? Does it apply for the employee working 4/10 if they are taking time off on Fridays?

  18. Misty
    Misty April 13, 2021

    Can you alternate between 5 day/8 hr weeks and 4 day/10 hr weeks?

    • Lindsay Sommers
      Lindsay Sommers April 15, 2021

      Typically employers have to stick with the same schedule if they’re adopting the alternative workweek schedule. I recommend that you speak with the local labor board in your area about their regulations/rules.

  19. Jake
    Jake April 15, 2021

    I have a question that I hope can be answered. Our company held the secret voting for a 4 day, 10 hour work week. (NOTE- We employees did not receive anything regarding any meeting minutes before voting-which I understand now that we should have received)
    Anyhow, the 4 day 10 hour shift was voted and accepted .
    We have been on the new schedule for a full month now and have not yet worked 4 10 hour days. Each week the company is calling for mandatory extra time, and everyone has to work on their scheduled day off for another 10 hour shift-and it appears that there is no end in sight. We are getting paid overime for 8 hours and double time for 2 hours on what is supposed to be our days off. Not everyone is on the same work schedule. Some have weekends off, some do not. There are MANY different schedules and they are calling mandatory extra time for every person to work their scheduled day off. We are notified anywhere from 5 days to 48 hours in advance.

    Also, since going to these new hours, our last break for the day has been routinely been put off until the very end of the shift. Many days there is no second break, some days break is given and then it is time to punch out for the day, and occasionally, we get our last break a few hours before the 10 hour shift ends. So a typical day is 10 hours of work 1 20 minute break, a 30 minute lunch break (But we are paid for 1 hour) and usually no 2nd break. After our 30 minute lunch break – it is a full 6 hours until work is over and we punch out without a second break.
    Is all or any of this normal for California………or just normal for Amazon?

    • Lindsay Sommers
      Lindsay Sommers April 21, 2021

      Hi Jake. It sounds like there are a lot of rules that your employer may be breaking, so it’s best that you consult with an HR representative or legal counsel in your area.

  20. Sarah Bertrand
    Sarah Bertrand May 12, 2021

    Hi – If we are on a 9/80 alternate work schedule and I am required to work 11 hours instead of 9 hours on one day, can my employer allow me to flex those 2 hours and leave early one day? What if I signed something saying I forgo overtime and would rather leave early or come in late 2 hours during that same week?

    • Lindsay Sommers
      Lindsay Sommers May 18, 2021

      Hi Sarah, this is something you’d want to speak to an HR expert about. I’m not sure how that would work and if that method is authorized by the state of CA.

  21. Scott
    Scott June 7, 2021

    I am scheduled four-tens, but oftentimes I wish to leave early. My employer is not requesting I leave early, but allows me to do so. Because I am requesting early leave, my employer is not obligated to pay overtime, is he?

    • Lindsay Sommers
      Lindsay Sommers June 8, 2021

      Your employer is only required to pay you for any hours that you actually work– not for the hours you’re supposed to work. If you end up working overtime, your employer must pay you at the correct overtime/double-time rate.

  22. Brenda Avila
    Brenda Avila June 30, 2021

    Hello I do work in the veterinarian field, and recently I needed to change to 4/10shifts, (due to pick up kids from daycare before 6pm)but Management wants me to work 11hr shift with a 1hr lunch, hour office hours are from 8-6. I had work with corporate company before and they usually schedule me only 10.5 hrs with 30min lunch. I’m correct or wrong here? My original schedule 7:45-4:45 ,
    New schedule 7:45-6

    • Lindsay Sommers
      Lindsay Sommers July 1, 2021

      Hi Brenda. It looks like your new schedule is 7:45am-6:00pm. If that’s the case, your shift is expected to be 10 hours and 15 minutes in length. In California, those who work up to 10 hours are entitled to a 30-minute meal period. A second mandatory 30-minute meal period applies when you work more than 10 hours. If you work no more than 12 hours, you and your employer can waive that second meal break upon agreement– meaning you’ll only have one 30-minute meal period throughout your shift. This all being said, since they want you to work slightly over 10 hours, they must give you a 2nd meal break, resulting in a total meal break time of 1 hour. You can potentially wave that second break. I suggest that you speak with your supervisor.

  23. Les
    Les July 15, 2021

    I am a substance abuse counselor and in a union. We are requesting to work 4 10s and await a decision. Is there a possibility that we will be denied because we are technically in the health care field?

    • Lindsay Sommers
      Lindsay Sommers July 15, 2021

      Hi Les. In order to comply with “Health Care Industry” rules, you must count as someone in the health care industry. You can find information about Health Care Industry definitions here. Here’s a link to learn more about overtime exceptions to employees in the healthcare industry who adopted a 4/10 schedule: There’s a possibility you may get denied, but there are people out there who are in the health field and have alternative workweek schedules. You’re not alone.

  24. Rebecca
    Rebecca July 27, 2021

    Is it possible to have a regular, agreed upon in writing, schedule such as the following:
    2 days of 10 hours = 20 hours
    2 days of 6 hours = 12 hours
    1 day of 8 hours = 8
    Total 40 hours

    Would the 10 hour days need 2 hours to be paid on overtime? This schedule is to accommodate the employee’s request.

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