3. Maximum Hours of Work
•Certain Wage orders have a maximum of 72 hours
•Where others have no such limitations
• “Working Hours for Minors” chapter 7 page 125
•“Overtime in Transportation” chapter 13 page 358
•“Alternative Workweek Schedule and Health Care”
chapter 14 page 374
•“Exceptions for Specific Industries” Page 335
4. Minimum Hours Of Work
•Most situations do not require a minimum number of
hours
•Wage order 16 has Exception
•“alternative Workweek Schedule” chapter 14 page 362
•One hour shift to attend a training meeting
•Additional coverage during Lunch rush
•Section 5 of each wage order
5. Mandatory Days off
•Generally Entitled to one day off in a seven day work week
•Make it up if they work seven days straight
•“Seventh Day of Work Rule”
•Is the required day of rest calculated by the workweek or is it calculated on a
rolling basis for any consecutive seven-day period?
•How does the exemption for part time employees work?
•What does it mean for an employer to cause an employee to work more than six
days in seven: force, coerce, pressure , schedule, encourage, reward, permit, or
something else?
•Minimum time between shifts
6. Travel Time
•Most case travel to and from work not covered
•Travel on job is covered including
•Air travel
•Meal and rest periods
•Overtime
•Travel rate of pay can be less than normal rate of pay
•Reimburse for out of pocket expenses
7. Transportation
Mandatory mode of Transportation
Optional Employer-Provided Transportation
Exception to Travel time Pay at Minimum Wage
Onsite occupations
Travel to second location
Liability for Employee actions during Commute
Wash up time “donning and Doffing”
Unionized workplaces
8. Hours continue
California Labor Law are generally more protection than FLSA
Apple lawsuit
Training Hours
Education and Training time exceptions
Time is outside of normal working hours
COursework that is unrelated
Voluntary attendance
NO production work is performed
9. Meal and Rest Breaks
You must give nonexempt employees an opportunity to take a 10-minute paid
rest break for every four hours worked, or major fraction thereof. You may
not employ an employee for a work period of more than five hours per day
without providing him/her with a 30-minute unpaid meal break
In addition, an employer with employees who work outside cannot require an
employee to work during any “recovery period” taken to avoid heat-related
illness.
10. Importance of Compliance
California employers face costly consequences for violating meal and rest
break rules.
Statutory damages for meal and rest break violations are calculated at one
hour of additional straight-time pay for each employee for each work day the
employee is denied the meal or rest break.
If the employer fails to provide both a meal and a rest break, the employee is
entitled to two hours of additional premium-time pay. These damages are
additional wages, which are subject to a three-year statute of limitations.
11. Brinker Decision on Meal and Rest Breaks
Brinker Restaurant Corp. v. Superior Court
The question of whether employers must ensure that breaks are taken or
must simply provide breaks has been a source of significant litigation in both
federal and state courts. The court ultimately ruled in Brinker’s favor on the
most critical part of the decision-holding that employers do not have to
ensure employees take their meal breaks.
12. Rest Breaks
Employers must authorize and permit rest periods for all nonexempt
employees whose total daily work time is at least 3.5 hours. These mandatory
rest breaks must be offered at the rate of 10 “net” minutes for every four
hours worked, or major fraction thereof.”
The wage orders require a rest break duration of “net”10 minutes. This has
been interpreted by the DLSE to mean that the rest period begins when the
employee reaches an area away from the workstation that is appropriate for
rest.
13. Timing of Rest Breaks
As a general rule, and insofar as practicable, the rest period should be in the
middle of the four-hour work period.
In Brinker, the California Supreme Court ruled that employers are “subject to a
duty to make a good faith effort to authorize and permit rest breaks in the
middle of each work period
Employers should be cautious about departing from the general rule to
provide rest breaks in the middle of each work period and should consult with
counsel if practical considerations unique to their industry appear to warrant
a departure from the general rule.
14. Piece Rates and Rest Breaks
A piece rate is a rate of pay based on completing a particular task or making a
particular good instead of actual time worked.
In general, the new law requires the employer to compensate piece rate
employees for rest and recovery periods and all other periods of
“nonproductive time” separately from any piece rate pay and at specified
minimum rates
If your company uses a piece rate compensation system, you should review
the program to ensure compliance with meal, rest and recovery period
requirements, as well as other wage and hour requirements.
15. Meal Breaks
An employer cannot employ someone for a work period of more than five
hours without providing an unpaid, off-duty meal period of at least 30
minutes. When a work period of not more than six hours will complete the
day’s work, the meal period may be waived by mutual consent of the
employer and employee.
Some less commonly used Wage Orders contain different timing
requirements for meal and rest periods and different rules regarding waivers.
16. Timing of meal breaks
Recording Meal Breaks
Waiver if Six Hours Ends the Shift
On-duty Meal Breaks
Wages Required if Employees May Not Leave
Meeting or Training During Lunch Breaks
Meal Breaks Cont...
17. Timekeeping and Recording Guidelines
Payroll Record must:
Be properly dated ( Month/ Day / Year )
Keep for at least four years at the place of employment or at a central location within California
Every employer is required by law to keep accurate information about each employee such as:
Full name, home address,occupation,and social security number
If under 18 years,birth date and designation as a minor
Meal periods,split shift intervals and total daily hours worked - Meals periods during which operations cease and
authorized rest periods need not be recorded
Total wages paid each payroll period,including value of board, lodging or other compensation actually furnished to
the employee
18. Penalties for Failure to Keep Payroll Records
An employee’s records must be be available for inspection by the employee upon reasonable request.
To any other civil penalties provided by laws,any employer or any person acting on behalf of the employer who
violates or causes to be violates or causes to be violated the provisions of this order,are subject to :
Wages Order Violation:
Initial violation: $50 for each unpaid employee for each pay period during which the employee was underpaid in
addition to the amount is sufficient to recover unpaid wages.
Subsequent Violation: $100
Failure to provide wage deduction statement or records:
Initial violation: $250 per employee per violation
Subsequent Violation : 1,000 per employee per violation
19. Rounding Practices
State Labor Commissioner uses the U.S Department of Labor practice of rounding employee’s hours to the nearest
5 min.
Rounding must be used in such a manner that it will not result in failure to compensate the employees properly for
all the time they actually worked over a period of time
The Fourth District court of Appeal recently conclude, that under California law,employers may round employee
timecard entries to the nearest tenths of an hour.
20. Accurate Recording Time
Your company must keep accurate records of hours worked by nonexempt employees to comply with applicable
state and federal laws.
Timekeeping recording should reflect start and end time for employee’s shift . Also be able to clock out for lunch
period and cook back once break is over.
Brinker Restaurant Corp. V Superior Court (uninterrupted 30 minutes meal period before the end of the 5th
hour of work)
Your company should generally define your timekeeping practices
There should be a section provided by employee to employer for the consequences for :
Falsification ,destruction, modification or removal of time records
Late or early recording time;
Recording another employee’s time record
21. Prohibiting off the clock work
Tips Off the clock policies and practices
Be specific about what you mean by “by off the clock work”
Supervisors should regularly check in with employees to ensure that are not performing off- the clock work.
Don’t forget that the employer has to pay for any type off the clock work .Regardless on whether the employee
violated the company’s policy .
Remote work may create off the clock liability issues .
Consider not issuing smartphones, tablets, or laptops to nonexempt employees
Instruct nonexempt employees on when they will be working and the time they may be on the clock to where they
can respond to a work related email.
Block after hours access to company servers or allow access only with advance approval.
22. Chapter 13: Overtime
Currently, California laws favor employees more than federal rules
and exceptions.
In 2015, Department of Labor submitted a proposal for revision of
federal overtime rules.The proposal calls for a minimum salary
threshold for exempt employees higher than that of California's.
2016
23. Understanding Basic Overtime Requirements
Overtime Posting Requirements
Post applicable wage order(s) for your business.
Daily Overtime-California Law
Pay 1.5 times the employee’s regular rate for:
Hours worked beyond 8 in a single workday
First 8 hours worked on the 7th consecutive day of a single workweek
Pay double the employee’s regular rate for:
All hours worked beyond 12 in a single workday
24. Weekly Overtime-California & Federal Law
1.5 times the regular rate for all hours worked beyond 40 straight-time hours in a
workweek.
Seventh Day of the Workweek
1.5 times the regular pay rate for the first 8 hours worked.
Double the regular pay rate for all hours worked beyond 8.
Straight-Time Hours Defined
Normal working hours paid at a regular rate.
Nonresidents Entitled to Overtime for Work in California
25. Defining Workdays & Workweeks
Workday Defined
Any consecutive 24-hour period starting at the same time each calendar day.
Ex. 12:01 a.m. - to midnight
Workweek Defined
Any 7 consecutive 24-hour periods starting on the same calendar day each week.
Ex. Sunday - Saturday
Definition of Workweeks for Scheduling and Compensation Must Match
Employer cannot manipulate established and assigned schedules to avoid paying overtime.
26. Calculating Overtime
Regular Rate of Pay Defined
Employee’s actual rate of pay, including all hourly earnings, plus many other types of
compensation.
Calculating Overtime for Hourly Employees
Based on the employee’s regular rate of pay.
Calculating Overtime for Salaried Nonexempt Employees
Overtime rate is based on the regular rate of pay.
Hours Paid But Not Actually Worked
29. Requiring Mandatory Overtime
Usually, employee’s cannot refuse your request that they work overtime.
Limitations under certain Wage Orders and union contracts.
When faced with an overtime need, request volunteers among employees
who are qualified before requiring someone to work overtime.
You can take disciplinary action if an employee refuses to fulfill your request
of overtime.
30. Using Makeup Time
Makeup Time Guidelines
You can inform an employee of the makeup time option, but you cannot encourage or
require employee to request approval for makeup time.
Employee can work no more than 11 hours on another workday, no more than 40 hours in a
workweek to makeup time off.
Time must be made up within the same workweek
Signed, written request for each occasion employee desires makeup time must be provided
to the employer.
Time Records for Makeup Time
31. Compensatory Time Off (CTO)
Private Employers in California are not allowed to offer CTO to nonexempt
employees in lieu of paying overtime, unless they are exempt from the federal
Fair Labor Standards Act (FLSA).
Limits on use of CTO by Public Employees
Public employers can require employees to use accrued CTO in order to reduce the amount
of time that is accrued.
Compensatory Time Off and Exempt Employees
CTO Regulations do not apply to exempt employees.
32. Overtime Exceptions for Specific Industries
Overtime for Domestic Work Employees/ Personal Attendants
Overtime for Private School Teachers
Overtime in Hospitals
Overtime for On-Site Construction, Drilling and Logging
Overtime in Agriculture
Overtime in Transportation
Overtime and Collective Bargaining Agreements
Overtime and Residential Care Employees
34. Flexible Schedule Vs. Alternative Workweek
“Any regularly scheduled workweek
requiring an employee to work more
than eight hours in a 24-hour period”
Apply to employees in all Wage Orders
EXCEPT Wage Order 14
Apply ONLY to Nonexempt employees
A Flexible Schedule is a workweek schedule
of eight hours per day where some
employees begin the shift early in the
day and others begin work later in the
day.
Gets paid overtime after 8 hours in a day
Institute flexible schedule at any time
Alternative workweek scheduling allows nonexempt
employees to work more than eight hours per day without
requiring daily overtime payment.
35. Creating an Alternative Workweek
Schedule
Define the work unit, which may
include one or more nonexempt
employees in:
Division
Department
Job Classification
Shift
Separate physical location
Recognized subdivision of any
Wage Order 16
The term “work unit” only includes “all
nonexempt employees of single
employer within a given craft who share
a common worksite”
If an eligible employee has been employed
in the affected work unit within 30
calendar days preceding the election but
not present on election day, you must
notify and allow employee to vote in any
election for an alternative workweek.
36. Propose an Alternative Schedule
Present a written proposal
Proposed agreement should have the specified number of workdays and
work hours regularly repeat.
Must provide no fewer than two consecutive days off within each workweek
EXCEPT for employees working an alternative workweek in Wage order 4,
5, 9, 10, 15, and 16
37. Propose a Single Schedule or a Menu
Propose a single work schedule for all employees in the work unit
OR
Propose a menu of work schedule options from which each employee in the
work unit could choose.
38.
39. The 9/80 Schedule
5-4/9 flexible schedule: A total of nine days of work in an 80-hr period - 5 days
one calendar week and 4 days the following week
Traditionally midnight to midnight - midnight on a certain workday until
midnight 7 days later
Must begin the workweek for day shift employees between the fourth and
fifth hours of work on any day of the week
Define the workweek so employees do not work more than 40 hours in that
workweek
Example on page 365.
40. Determine the Max and Min Hours Allowable
You must pay the overtime premium for all hours over 10 in one workday
and over 40 in one workweek
Minimum of four hours - Wage Order 16 does not contain a minimum
number of hours
Distribute a written disclosure - Failure to comply invalidates the election
Hold at least 1 meeting 14 days prior to voting, specifically to discuss the
effects of the alternative workweek schedule
DO NOT COERCE OR INTIMIDATE EMPLOYEES
41. Hold a Secret Ballot Election
All employees affected can vote
Two-Thirds vote is required
Do not require employees to put identifying information on the ballot
Election must be held during working hours at the affected employee's
worksite
Exempt employees do not vote
42. DIR
File the election results with the Office of Policy, Research and Legislation
(OPRL) within 30 days of the final election. Once filed it becomes a public
document.
Retain Complete Records and documentation showing how the schedule is
being followed.
43. Maintaining the Alternative Workweek Schedule
Must comply with the following:
Create the Alternative Workweek Schedule
Accommodate Employees Who Cannot or Will Not Work the Alternative
Workweek Schedule
You must accommodate an employee’s religion
You must accommodate employees who were eligible to vote in the election
You must accommodate employees hired after the election
Ensure Meal and Rest Breaks
44. Paying Overtime in an Alternative Workweek
Must provide time and one-half of employee’s regular rate of pay
Double time
Pyramiding: being paid more for the same hours worked.
Regularly Scheduled Overtime in an Alternative Workweek
45. Repealing the Alternative Workweek Schedule
EMPLOYER can terminate an alternative workweek schedule without
holding a repeal election
Employer must provide reasonable advance notice to employee
EMPLOYEES can repeal by holding another secret ballot vote
Employees must petition to repeal. ⅓ of affected employees must sign
Must hold new secret ballot election to decide whether or not to repeal
Within 30 days after petition is submitted
No less than 12 months from 1st election - 6 months if Wage Order 16
46. Invalidation of Alternative Workweeks
Reasons Labor Commissioner invalidates alternative workweeks:
Schedule was improperly implemented
Did not pay overtime properly
People on the schedule no longer belong to original work unit
Employees consistently work outside the regular schedule
Schedule was changed without the required procedures
Collective bargaining agreement containing alternative workweek schedul
expired
47. Exceptions
Alternative workweek scheduling provisions of the law do not cover
employees on public works projects and agriculture - Wage Order 14 permits
agricultural employees to work up to 10 hours per day without overtime in
limited circumstances.
Employees working under a collective bargaining agreement fall under the
agreement’s terms if the agreement provides premium pay for overtime
hours and at least 30% higher wages than state minimum wage
48. Healthcare
Certain employees in the health care industry
can work shifts longer than 10 hours on an
alternative workweek schedule
Hospitals
Skilled nursing facilities
Intermediate care and residential care
facilities
Convalescent care institutions
Home health agencies
Clinics operating 24 hours per day
49. Health Care Industry
12 hour shifts permissible in the health care industry
Min shift length - 4 hours
*Even in a health care emergency, an employee can work no more than 16
hours unless there is voluntary mutual agreement between employee and
employer.
50. Health Care Industry
Relief for Employee No-Show - 12 hour shift can work up to 13 hours
Meal Break Waiver - Work shifts in excess of 8 hours, may voluntarily waive
2nd meal break.
Must make a reasonable accommodations for employees unable to work
alternative workweek for any employee that meets the following:
Covered by Wage Order 4 or Wage Order 5
Participated in a valid election prior to 1998
Unable to work the alternative workweek schedule
