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