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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.


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One Comment

  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.

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