comp and overtime
vwindham
42 Posts
I have a two part question:
1) How can a company take overtime away when an ee works overtime to use as make-up time for another day?
2) We have one person in the company that works 4 - 10 hour days to make her 40 hours weekly, to accomodate a medical obligation. Right now we take that 2 hours of overitme per day, take it out of overtime and put it on regular time every week. Is that OK to do?
Am I correct that in a 40 hour week, overtime is any time over 40 hours WORKED
(not to include sick time)?
Ok I lied it is a three part question!
This is California, the land of exceptions to the rules!
1) How can a company take overtime away when an ee works overtime to use as make-up time for another day?
2) We have one person in the company that works 4 - 10 hour days to make her 40 hours weekly, to accomodate a medical obligation. Right now we take that 2 hours of overitme per day, take it out of overtime and put it on regular time every week. Is that OK to do?
Am I correct that in a 40 hour week, overtime is any time over 40 hours WORKED
(not to include sick time)?
Ok I lied it is a three part question!
This is California, the land of exceptions to the rules!
Comments
In California, there is daily overtime required if the employee works more than 8 hours unless there is an approved alternative work schedule. I trust the 4/40 work schedule was agreed to by the employees in accordance with state law.
I'm not quite sure what you mean by the hours she missed being taken out of the overtime. I would have thought that what was occuring was that the employee received sick pay for the time she missed and then sitll worked beyond her regular schedule to make up those missed hours during the week. But you as noted you realize she wouldn't be entitled to overtime if that were the case. So, I won't suggest that is what is happening.
If you could post her schedule that may help to identify exactly what is going on.
If the employee is disabled, under California's ADA (the Fair Employment and Housing Act), a reasonable accommodation COULD be modification of policies -- in this case allowing the employee to work a 4/40 to accommodate the disability -- even though all 5/40 is required from everyone else. Whiole the State Labor Cod and the Industrial Welfare Commssion's Wage ORder requires a 2/3 vote in favor for an alternative work schedule like 4/40 to be implemented, the size of the voting group can be even one person..in this case, the employee could be a recognized subdivision of the office, given the fact that she is seeking reasonable accommodaton for a disability. In that case, while I am not an atorney I suspect that would get the employer off the hook for having to pay 2 hours of overtime for each day over 8 hours of work. It depends on how that recognized subdivion of the office is justified. If the 4/40 is valid under the law even though it is just for her, then the overtime need not be paid by the emplyer.
The Labor Code provisions and the Wage Order for alternative workweeks do not address directly the issue of an alternative work week done solely as a reasonable accommodaiton under ADA. The presumpiton is that an employee may not be able to work the alternative work week and therefore the employer is still obligated to allow that to occur.
Of course, only the Department of Industrial Relations Division of Labor Standards Enforcement could give you the definitive administrative ruling on that issue.
It's hard to say if the employer is has a valid alternate work schedule for the employee. If it does, then it need not pay overtime for 2 hours each day she actually works 10. On the other hand if it doesn't have a valid altnerate work schedule as envisioned by the Labor Code and the Wage Order, it may be on the hook for that overtime.
V
Fax # is
909-694-3411
Thank you so much!! This is so nice to have a place to turn where you can get help and not feel dopey!
Have a great day!
Vicki
[url]http://www.dir.ca.gov/IWC/WageOrderIndustries.htm[/url] Most likely you'll want Wage Order No. 4, unless your industry is addressed in one of the other wage orders (basically the wage order is the administrative regulatory guidance based upon the Labor Code).
The Labor Code itself can be linked through the DIR's home page at [url]http://www.dir.ca.gov[/url] or go to [url]http://www.leginfo.ca.gov[/url]
Another good place to know as part of the DIR website is the Division of Labor Standards Enforcement, which can accessed by by "Labor Law" link on the DIR home page. The DLSE enforcement manual and opinion letters can be reviewed there. The IWC can also be reached through the "Labor Law" link.
There is another alternative but it wouldn't apply until such time as the employee would request it - and that is make-up time. Make-up time has it's own set of obligations on the part of the employee and the employer.
What a mess.