Not everyone works a 4-hour workweek, but all those who work some finite periods of time may wonder, when does the time worked starts counting toward the overtime. In California, a straightforward response would be, after 8 hours per day or after 40 hours per week. But not everything is straightforward, and the overtime may come sooner just as well as it may come later in the workday or workweek. In other words, "it depends."
There is a reason why Simmons' "Wage & Hour" manual now counts over 940 pages--it is all about those "it depends" variations, the details turning a seemingly simple question into an unpredictable result. I am not talking about sheepherders and others exempt from the overtime coverage altogether. I am talking about situations, when the overtime is counted differently even for more mundane occupations.
There is a reason why Simmons' "Wage & Hour" manual now counts over 940 pages--it is all about those "it depends" variations, the details turning a seemingly simple question into an unpredictable result. I am not talking about sheepherders and others exempt from the overtime coverage altogether. I am talking about situations, when the overtime is counted differently even for more mundane occupations.
When Overtime May Be Due Sooner.
For instance, may the overtime become due after a workweek shorter than 40 hours? Possibly, if there is an explicit written agreement to that extent. It is even more so, if the agreement is the collective bargaining agreement. Labor Code §514, Vranish v. Exxon Mobil Corp., 223 Cal.App.4th 103 (2014).
Several cases held that in the absence of such agreement, a fixed weekly payment is construed as a pay for a regular workweek. Simmons, Ch.8.3, pp.285-286 (2013), cites Nordquist v. McGraw-Hill Broadcasting Co., 32 Cal.App.4th 555, 562 (1995), as a sample of a 35-hour workweek (I wasn't able to find that time limit in the decision). Other cases cited on the subject were: Hernandez v. Mendoza, 199 Cal.App.3d 721, 725 (1988), Ghory v. Al-Lahham, 209 Cal.App.3d 1487 (1989), all deciding around the absence of the explicit written agreement. Decision in Arechiga v. Dolores Press, Inc., 192 Cal. App. 4th 567 (2011) is particularly useful, it affirms the existing agreement between the parties as sufficiently explicit.
While I haven't find it in the decisions, I saw it acknowledged on the California Department of Industrial Relations' website. It confirms that for the workweeks lesser than 40 hours in length, extra hours worked below the 40-hour weekly limit will still be compensated at the regular rate. DIR's publication emphasizes that the law does not require employers to pay the overtime rate for those hours, but hints that it can be "agreed upon." I read it as an implied requirement for the "explicit written agreement."
When Overtime May Be Due Later.
Several cases held that in the absence of such agreement, a fixed weekly payment is construed as a pay for a regular workweek. Simmons, Ch.8.3, pp.285-286 (2013), cites Nordquist v. McGraw-Hill Broadcasting Co., 32 Cal.App.4th 555, 562 (1995), as a sample of a 35-hour workweek (I wasn't able to find that time limit in the decision). Other cases cited on the subject were: Hernandez v. Mendoza, 199 Cal.App.3d 721, 725 (1988), Ghory v. Al-Lahham, 209 Cal.App.3d 1487 (1989), all deciding around the absence of the explicit written agreement. Decision in Arechiga v. Dolores Press, Inc., 192 Cal. App. 4th 567 (2011) is particularly useful, it affirms the existing agreement between the parties as sufficiently explicit.
While I haven't find it in the decisions, I saw it acknowledged on the California Department of Industrial Relations' website. It confirms that for the workweeks lesser than 40 hours in length, extra hours worked below the 40-hour weekly limit will still be compensated at the regular rate. DIR's publication emphasizes that the law does not require employers to pay the overtime rate for those hours, but hints that it can be "agreed upon." I read it as an implied requirement for the "explicit written agreement."
When Overtime May Be Due Later.
Consider also the “alternative week schedule” ("AWS") method. It allows partial exemption from the overtime rules, letting an employer to pay straight rate for hours worked exceeding 8 per day. They can be “three-day, four-day, four-and-a-half day, and 9/80 schedules. In the healthcare industry, 12-hour shifts are also permissible.” Simmons, Wage & Hour Manual, Ch. 9, p.373 (2013). In these cases, overtime can come not after 8th, but after 10th hour. Mitchell v. Yoplait, 122 Cal.App.4th Supp. 8 (2004). Where exists, this permission is stated under section 3(B) of the IWC orders, e.g., Order 12, provided there are two consecutive days off (section 3(B)(2)).
It is even possible that the overtime won't kick in until the whole 12 hours. Cal. Labor Code, §511(b). See also, Singh v. Sup. Ct., 140 Cal.App.4th 387 (2006) [Employee who worked three 12-hour days weekly was not entitled to overtime pay for all hours worked beyond the regularly scheduled alternative workweek schedule; overtime was due only after 40 hours of work in a week, or over 12 hours in a given day.] The AWS with 12-hour workdays and 40-hour workweeks is expressly allowed without paying overtime in the healthcare industry.
There is another permitted exemption, for working the "make up" time, even if such time worked during a week when "normal" hours were worked. Cal. Labor Code, §513.
Don't confuse the AWS with a "fluctuating" workweek ("FW"). Under FW approach, the amount of hours fluctuates from week to week, and the rate may also fluctuate. Unlike the AWS and "make up" approaches, FW is permitted under FLSA (PROVERIT 29 CFR §778.114), but is not allowed in California. Skyline Homes, Inc. v. Department of Industrial Relations, 165 Cal.App.3d 239 (1985).
Another difference between California and Federal treatments of time is that, surprisingly and with few exceptions, FLSA does not require an overtime premium for hours worked in excess of any daily number, only that there is a total 40 hours per week. Gentry v. Sup. Ct., 42 Cal.4th 443, 455 (2007).
Don't forget your calculator next time to show up at work!
______________________
It is even possible that the overtime won't kick in until the whole 12 hours. Cal. Labor Code, §511(b). See also, Singh v. Sup. Ct., 140 Cal.App.4th 387 (2006) [Employee who worked three 12-hour days weekly was not entitled to overtime pay for all hours worked beyond the regularly scheduled alternative workweek schedule; overtime was due only after 40 hours of work in a week, or over 12 hours in a given day.] The AWS with 12-hour workdays and 40-hour workweeks is expressly allowed without paying overtime in the healthcare industry.
There is another permitted exemption, for working the "make up" time, even if such time worked during a week when "normal" hours were worked. Cal. Labor Code, §513.
Don't confuse the AWS with a "fluctuating" workweek ("FW"). Under FW approach, the amount of hours fluctuates from week to week, and the rate may also fluctuate. Unlike the AWS and "make up" approaches, FW is permitted under FLSA (PROVERIT 29 CFR §778.114), but is not allowed in California. Skyline Homes, Inc. v. Department of Industrial Relations, 165 Cal.App.3d 239 (1985).
Another difference between California and Federal treatments of time is that, surprisingly and with few exceptions, FLSA does not require an overtime premium for hours worked in excess of any daily number, only that there is a total 40 hours per week. Gentry v. Sup. Ct., 42 Cal.4th 443, 455 (2007).
Don't forget your calculator next time to show up at work!
______________________
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Your options and available strategies will depend on your case's particular facts. If you are currently in a similar situation and need to learn more about your rights and obligations, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. My office provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.
Your options and available strategies will depend on your case's particular facts. If you are currently in a similar situation and need to learn more about your rights and obligations, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. My office provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.
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