If a nonexempt employee has to take a few hours off to take
her elderly father to the doctor, she might ask to make up the lost time on
another workday, rather than lose a day's pay that week. The problem is, the
employee is scheduled for 8 hours each day, so any extra time means you'll be
on the hook for overtime, right?
Maybe not. California 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 make-up time.
The make-up time provisions, found in Labor Code Section 513
and the Industrial Welfare Commission (IWC) Wage Orders, allow an employee who
takes time off for a personal obligation to make up that work time in the same
workweek, at straight-time pay--even
if the employee works more than 8 hours on a make-up day. The make-up 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.
Remember, however, that the time must be made up in the same
workweek as the time lost. The make-up time can occur earlier or later in that
workweek than the time taken off.
So, for example, an employee who will miss 2 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 2 hours on Monday can make up the
time the following Friday.
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 make-up time for a personal
obligation that recurs at a fixed time can request up to 4 weeks in advance to
work make-up time.
So, for example, an employee who knows of the need for 2
hours off each Wednesday for the next 4 weeks can submit a single make-up time
request rather than 4 separate requests. However, the make-up work must still
be performed in the same week that the work time is actually lost.
Another point to keep in mind: You cannot solicit or
encourage employees to work make-up time, but you can inform them about the
make-up time option. Also, you can't condition your approval of the time off on
the employee's agreement to use make-up time.
To help ensure that your company properly administers make-up
time, it's a good idea to have a written make-up time policy laying out the
rules and limitations, as well as a make-up time form employees can use for
their requests. Also, train managers on the rules, including the prohibition on
soliciting, encouraging, or requiring make-up time. And finally, be sure to set
up a system to track make-up time to ensure employees don't work more than 11
hours on make-up days or 40 hours for the week.