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 makeup
time.
What Is Makeup Time?
The makeup 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
straighttime pay—even if the employee works more than eight hours on a makeup
day. The makeup 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.
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.
Note that if an employee
works the makeup 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 makeup time request was properly submitted and the
employee didn’t work more than 11 hours on the makeup 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 makeup 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 makeup 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 makeup 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.
Makeup Time Differs from
Comp Time
The requirement that the
makeup time occur in the same workweek as the lost time is what distinguishes the
makeup time rule from compensatory time off. Makeup 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 makeup time if an employee
works more than eight 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).
5
Requesting Makeup Time
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
makeup time for a personal obligation that recurs at a fixed time can request up
to four weeks in advance to work makeup 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 makeup time request rather than four separate requests.
However, the makeup work must still be performed in the same week that the work
time is actually lost.
You cannot solicit or
encourage employees to work makeup time, but you can inform them about the
makeup time option. So, if an employee asks for time off but doesn’t submit a
makeup time request, you could give the person a makeup time form or otherwise
inform him or her about the makeup time option. However, you can’t condition
your approval of the time off on the employee’s agreement to use makeup time.
Tips for Employers
Here are four steps to
help ensure your company properly administers makeup time:
1. Adopt a makeup time
policy that sets out the rules and limitations.
2. Create a form that
employees have to use to request makeup time.
3. Train managers on the
makeup time rules, including the prohibition on soliciting, encouraging, or
requiring makeup time. Stress to managers the importance of following them to
the letter.
4. Set up a system to
track makeup time. It should ensure that employees do not work more than 11 hours
on makeup days or 40 hours for the week, and that payroll obtains the necessary
information so that wages are correctly calculated.