Suppose a nonexempt
employee has to take a few hours off on a workday to take her elderly mother to
the doctor. Rather than suffer a loss of pay that week or have to use a
valuable vacation or paid time off day, the employee asks to make up the lost
time on another workday that week. The problem is, the employee is scheduled
for eight hours each day, so any extra time means you’ll have to pay overtime.
Fortunately,
wage and hour law provides a solution that permits the employee to keep his or
her full pay and allows you to avoid paying premium rates: It’s called make-up
time. This month, we provide an overview of the make-up time rules. In next month’s
issue, we’ll furnish you with a comprehensive sample make-up time policy and
request form.
The HR Management & Compliance Report: How To Comply with California Wage & Hour Law, explains everything you need to know to stay in compliance with the state’s complex and ever-changing rules, laws, and regulations in this area. Coverage on bonuses, meal and rest breaks, overtime, alternative workweeks, final paychecks, and more.
Make-Up Time Basics
The make-up time
provisions are laid out in Labor Code Section 513 and the Industrial Welfare Commission
(IWC) Wage Orders. The law allows an employee who takes time off for a personal
obligation to make up that work time in the same workweek, at straight-time pay—even
if the employee works more than eight hours on a make-up day. The make-up time is
not counted in the total number of hours worked when computing daily overtime,
unless the total hours worked exceeds 11 in a day or 40 in a week.
It is critical to
remember that the time must be made up in the same workweek as the time lost.
The makeup time can occur earlier or later in that workweek than the time taken
off. So, for example, an employee who will miss two hours on Friday can make up
that time earlier in the week, perhaps working an extra hour each on Monday and
Tuesday; an employee missing two hours on Monday can make up the time the
following Friday.
Note that if an employee
works the make-up time earlier in the week but then decides not to take the corresponding
time off, you don’t have to pay those extra hours at overtime premium rates if
the make-up time request was properly submitted and the employee didn’t work
more than 11 hours on the make-up day or more than 40 hours for the week.
However, if you have a 40-hour workweek, the employee in this situation who
puts in even one hour of advance make-up time will exceed 40 hours in the week
and thus be entitled to overtime pay. To avoid this problem, consider adopting a policy requiring employees
who work make-up time in advance of taking time off to take that time off.
The rules don’t prevent
employees working an alternative workweek schedule from using the make-up time
option, provided all the requirements are followed. Thus, for example, an
employee on an alternative workweek schedule consisting of 10-hour days could
work an extra hour—but only one hour—on a regularly scheduled workday (for a
total of 11) without payment of overtime to make up for a lost hour somewhere else
in that workweek. The employee may also make up the time on a nonregularly
scheduled workday.
Make-up
time is not counted in the total number of hours worked when computing daily
overtime unless the total hours worked exceeds 11 in a day or 40 in a week
Different than Comp Time
The requirement that the
make-up time occur in the same workweek as the lost time is what distinguishes the
make-up time rule from compensatory time off. Make-up time is extra time worked
by employees, at their request, to cover time they plan to take off or have
already taken off. Overtime need not be paid for make-up time if an employee
works more than 8 but not more than 11 hours in a day.
Comp time, on the other
hand, is time off given in exchange for overtime the employee worked at your request.
Comp time off must be provided at overtime rates (except for certain public
employers)
Submitting Requests
Each time an employee
wants to make up work time, he or she must give you a signed, written request for
your approval. An employee who knows in advance that he or she will be seeking
make-up time for a personal obligation that recurs at a fixed time can request up
to four weeks in advance to work make-up time. So, for example, an employee who
knows of the need for two hours off each Wednesday for the next four weeks can
submit a single make-up time request rather than four separate requests.
However, the make-up work must still be performed in the same week that the
work time is actually lost.
You cannot solicit or
encourage employees to work make-up time, but you can inform them about the make-up
time option. So, if an employee asks for time off but doesn’t submit a make-up
time request, you could give the person a make-up time form or otherwise inform
him or her about the make-up time option. However, you can’t condition your
approval of the time off on the employee’s agreement to use makeup time.
Recordkeeping
Other than the
requirement that make-up time requests be in writing, there are no formal
recordkeeping obligations. Nevertheless, employers should keep careful records
of make-up time requests and hours worked, such as by requiring employees to attach
a copy of make-up time requests to timesheets. If an employee claims he or she
wasn’t paid overtime after working more than eight hours in a day, you would
need these records to demonstrate you complied with the law.
Four Measures to Help
You Comply
Here are four steps to
help ensure your company properly administers make-up time:
1. Adopt a make-up time
policy that sets out the rules and limitations.
2. Create a form that
employees have to use to request make-up time.
3. Train managers on the
make-up time rules, including the prohibition on soliciting, encouraging, or requiring
make-up time. Stress to managers the importance of following them to the
letter.
4. Set up a system to
track make-up time. It should ensure that employees do not work more than 11
hours on make-up days or 40 hours for the week, and that payroll obtains the
necessary information so that wages are correctly calculated.