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Chapter 12, 13, & 14
Chapter 12:
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
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
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
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
TransportationMandatory 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 workplacesDifference between clothes and PPE
Security screenings
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
State mandated but not company required
Meal and Rest BreaksYou 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.
Importance of ComplianceCalifornia 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.
Brinker Decision on Meal and Rest BreaksBrinker 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.
Rest BreaksEmployers 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.
Timing of Rest BreaksAs 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.
Piece Rates and Rest BreaksA 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.
Meal BreaksAn 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.
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...
Timekeeping and Recording GuidelinesPayroll 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
Total hours worked in the payroll period and applicable rates of pay
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
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.
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
Prohibiting off the clock workTips 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.
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
Understanding Basic Overtime RequirementsOvertime Posting Requirements
Post applicable wage order(s) for your business.
Daily Overtime-California LawPay 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
All hours worked beyond 8 on the 7th consecutive day in a single workweek
Weekly Overtime-California & Federal Law1.5 times the regular rate for all hours worked beyond 40 straight-time hours in a
workweek.
Seventh Day of the Workweek1.5 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 DefinedNormal working hours paid at a regular rate.
Nonresidents Entitled to Overtime for Work in CaliforniaCA Overtime laws protect nonresident employees when they perform work in CA for
CA-based employers.
Defining Workdays & WorkweeksWorkday Defined
Any consecutive 24-hour period starting at the same time each calendar day.
Ex. 12:01 a.m. - to midnight
Workweek DefinedAny 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.
Calculating OvertimeRegular Rate of Pay Defined
Employee’s actual rate of pay, including all hourly earnings, plus many other types of compensation.
Calculating Overtime for Hourly EmployeesBased on the employee’s regular rate of pay.
Calculating Overtime for Salaried Nonexempt EmployeesOvertime rate is based on the regular rate of pay.
Hours Paid But Not Actually WorkedNot considered when calculating overtime.
Vacations, holidays, sick leave
Overtime ExamplesEx.1
Sun Mon Tues Wed Thur Fri Sat Total
Hours off 8 a.m.- 4:30 p.m.
8 a.m.- 6:30 p.m.
8 a.m.- 5 p.m.
7 a.m.- 5:30 p.m.
8 a.m.- 4:30 p.m.
off
Total 8 10 9 11 8 0 46
Wages Due
1.0x 0 8 8 8 8 8 0 40
1.5x 0 0 2 1 3 0 0 6
2.0x 0 0 0 0 0 0 0 0
Requiring Mandatory OvertimeUsually, 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.
Using Makeup TimeMakeup 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
Makeup Time Versus Alternative Workweek
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 EmployeesPublic employers can require employees to use accrued CTO in order to reduce the
amount of time that is accrued.
Compensatory Time Off and Exempt EmployeesCTO Regulations do not apply to exempt employees.
Overtime Exceptions for Specific IndustriesOvertime 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
Overtime and the Ski Industry
Overtime and Commercial Passenger Fishing Boats
Overtime for Mechanics
Chapter 14: Alternative Workweek Scheduling
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.
Creating an Alternative Workweek
ScheduleDefine the work unit, which may include one or more nonexempt employees in:
Division
Department
Job Classification
Shift
Separate physical location
Recognized subdivision of any work unit
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.
Propose an Alternative SchedulePresent 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
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.
The 9/80 Schedule5-4/9 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.
Determine the Max and Min Hours AllowableYou 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
Hold a Secret Ballot ElectionAll 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
DIRFile 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.
Maintaining the Alternative Workweek ScheduleMust 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
Ensure one day’s rest in seven
Paying Overtime in an Alternative WorkweekMust 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
Repealing the Alternative Workweek ScheduleEMPLOYER can terminate an alternative workweek schedule without
holding a repeal electionEmployer must provide reasonable advance notice to employee
EMPLOYEES can repeal by holding another secret ballot voteEmployees 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
Invalidation of Alternative WorkweeksReasons 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
ExceptionsAlternative 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
HealthcareCertain 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
Clinics performing surgery, urgent care, radiology, anesthesiology, pathology, neurology, or dialysis
Health Care Industry12 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.
Health Care IndustryRelief 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