Nonexempt employees sometimes need to attend to personal
matters during the workday—but they don’t want to dip into valuable
vacation time to do it and loss of even a few hours of work can strain an
employee’s budget. What options are available to allow the employee to deal
with quick personal matters without using up benefits or losing pay?
California law provides two alternatives—makeup time
and compensatory time off—that give hourly employees flexibility and
don’t require them to give up pay or use paid time off benefits. However, as
discussed below, employers should be aware that the compensatory time off
option allowed under California law conflicts with current federal law.
California Labor Code Section 513 and the Wage Orders of the
Industrial Welfare Commission permit employees to use makeup time. Makeup time
allows employees to take time off and work that time earlier or later in the
same workweek even if the employee works more than 8 hours in a day to make the
time up, without having to be paid overtime pay. However, if the employee works
more than 11 hours in a day, or 40 hours in the week, overtime and/or
double-time pay is still due.
The key to makeup time is to ensure that it is worked in the
same workweek that the time off is taken. For example, assume an employee works
a regular Monday through Friday schedule of 8 hours per day. The employee can
take off 2 hours on Tuesday, and then work 10 hours on Wednesday to make up the
time, without losing pay and without having to be paid daily overtime for the
extra 2 hours worked on Wednesday. Likewise, an employee who knows ahead of
time that he or she will need to take off 3 hours on, say, a Friday, can
schedule in advance to work longer days earlier in the week so that there’s no
loss of pay for the time taken on Friday.
If an employee works makeup time in advance and then later
decides not to take time off, employers do not have to pay overtime for the
additional hours worked earlier in the week. However, the employee should not
be permitted to work more than 40 hours in that workweek as a result of working
the advance makeup time, and should be required to take the requested time off.
Otherwise, overtime pay will be due for any hours worked in excess of 40 in the
workweek. Note that employees can work makeup time on a non-regularly-scheduled
The other key requirement for a proper makeup time policy is
that the employee must request to use makeup time in writing before taking the time off or working the makeup
hours. Written makeup time requests can be made up to 4 weeks in advance, and a
single written request can be made for makeup time that will occur in multiple
weeks within that time frame. Employers must also keep records of all written
makeup time requests as well as the hours taken off and made up for at least 3
Sample Makeup Time Policy
[Company] understands that from time to time, short-term
personal matters will arise that our nonexempt employees will need to attend to
during the workday. To avoid any loss of pay [or the need to use your other
paid time off benefits] when such situations arise, nonexempt employees can
request to work makeup time to handle personal matters that require only a few
Requests to work makeup time must be made in writing and
signed by the employee making the request before taking time off or working
makeup time. All makeup time requests must be approved by your
[manager/supervisor/ human resources] in advance. Makeup time requests can be
made up to 30 days in advance of when the makeup time is to be worked.
You may work makeup time before or after taking time off,
provided that the specific dates that the makeup time is to be worked are
provided for in your written request, and that the makeup time is worked in the
same workweek that the time off is taken. If you request time off, work makeup
time, and then later find that the time off is not necessary, you will
nonetheless be required to take the requested time off unless otherwise
approved by [your manager/human resources].
You will not be entitled to daily overtime pay for hours
worked in excess of 8 in a day if those hours are makeup time. Under no
circumstances will you be allowed to work makeup time that would result in
working more than 11 hours in a workday or 40 hours in a workweek.
Compensatory Time Off
Most employers and employees alike have heard the term “comp
time,” which is short for compensatory time off. Comp time allows an employee
to earn time off instead of being paid overtime wages. Some
employees—especially those who generally only work a few overtime
hours—prefer earning time off to receiving overtime pay because they find
they get the most benefit from having a little extra paid time off to use for
personal matters, rather than dipping into their vacation banks.
Under California law, both public and some private sector
employees can earn comp time in place of overtime. However, under current
federal law, comp time is only available to public employees. A bill now
pending before the U.S. Congress, called the “Family Friendly Workplace Act,”
would change the federal rule and permit comp time for public and private
Until that happens, private sector employers in California
that permit employees to earn comp time run the risk that they may be sued
under federal law for the value of overtime wages that were paid out as comp
time. It is therefore not recommended that an employer implement or permit a
comp time plan to be used without first consulting a legal expert.
A legal or other qualified expert should also be consulted
before implementing a comp time policy because a number of rules in the
California Labor Code govern comp time.
Makeup time should be an occasional exception to the
employee’s normal schedule; employees should not be permitted to use makeup
time to essentially set their own schedules.