In the California workplace, make-up time means more than powdering your nose during a 10-minute rest break. It means that an employee who has lost or will lose time because of time off for a “personal obligation” can make up that time within the same “workweek” – without earning overtime compensation. That’s a huge windfall for an employer. Consequently, employers have a strong incentive to make employees make up time, either before or after they take personal time off (PTO). But an employer’s make-up time policy might need a makeover if he doesn’t get all his ducks in a row.
How Can an Employee Request Make-Up Time?
In California, the law entitles a non-exempt employee one-and-a-half times his regular rate of pay for all work in excess of eight hours in one workday, 40 hours in one workweek, or the first eight hours of the seventh day of the workweek. Similarly, the law entitles a non-exempt employee to twice his regular rate of pay for all work in excess of 12 hours in one day or eight hours on the seventh day of the workweek.1 If an employer fails to pay all overtime compensation at the applicable rate, the employee can seek the unpaid balance (plus interest), civil penalties, and a mandatory award of attorney’s fees.2
But an employer might not have to pay an employee any overtime if the employee is just making up time. The employer just better have an ironclad make-up time policy. The employer can’t avoid the obligation to pay overtime unless the employee signs and submits a request to make up time each time he requests make-up time.3 The law doesn’t specify how many days before he takes time off that he must submit the request. But an employee who knows that his personal obligation will recur at a “fixed time over a succession of weeks” may request make-up time up to four weeks before the first day he takes time off.
The employer may “inform” the employee that he “may” make up time.4 Similarly, the employer may inform the employee of his obligation to sign and submit request form each time he requests make-up time. But the employee’s decision to make the request must be free of his employer’s influence. His employer may not “encourage or otherwise solicit” him to request approval to take PTO and make up the lost time within the same workweek.5 That means his employer can’t suggest or recommend, let alone order, that the employee “request” make-up time.6
How Can an Employee Make Up Time?
Even if an employee submits a request for makeup time, his employer can’t avoid the duty to pay him overtime compensation unless he makes up or will make up all PTO in the same “workweek” as the PTO.7 But a “workweek” isn’t the same thing as a “work schedule.” Rather, a “workweek” is as “any seven consecutive days, starting with the same calendar day each week.”8 Thus, an employee who works Monday through Friday during a workweek that starts on Sunday and ends on Saturday can take PTO on Wednesday and make up the time as early as Sunday or as late as Saturday.
But an employee’s performance of make-up time can’t cause him to work more than 11 hours in one workday or 40 hours in one workweek. For example, suppose an employee works 8:00 a.m. to 5:00 p.m., Monday through Friday. If a personal obligation suddenly arises on Thursday, and she has to leave work for the day at 11:00 a.m., she can only make up three of the five hours of PTO on Friday. That’s because making up all five hours on Friday would cause her to work from 8:00 a.m. to 10:00 p.m. – a 13-hour workday (excluding two 30-minute meal periods). Her employer would have to pay overtime for the extra two hours.