Bonus Pay for Holiday Work Is Not Required by Law

Question: I work at a small company with about 25 part-time employees who are paid on an hourly basis. There are only a couple of people on staff. The owner is contemplating opening for business on Dec. 26 and Jan. 2. Will we need to pay twice the regular hourly rate for employees working on those days when the Christmas and New Year’s Day holidays are generally observed?

--Huntington Beach

Answer: No. Although double-time pay for holidays is often provided under a union contract or company policy, there is no law requiring that employees be paid extra simply for working on holidays. Normal overtime laws would apply, however. If non-exempt employees would be required to work more than 40 hours in a workweek as a result of your being open for business on a holiday, they would be entitled to the applicable overtime premium.

--James J. McDonald Jr., Attorney, Fisher & Phillips, Law instructor, UC Irvine

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Question: Can an employee be required to work a split shift, such as 7 a.m. to 2 p.m. and then have to come back for one hour, from 10 p.m. to 11 p.m., in order to make up an eight-hour workday? And then can the employer require the employee to come back at 8 a.m. the next morning?

--D.E., El Toro

Answer: Yes, the employer does have a right to schedule employees to work different hours to meet business obligations. Let’s also define what is a split shift. Whenever an employer-established work schedule is interrupted by an unpaid, non-working period other than regular rest or meal periods, it becomes a split shift. If an employee, however, requests the interruption in the work schedule, or time off for their personal convenience, technically it is not a split shift.

If on the other hand, an employer requires the employee to work the split shift, then a split-shift premium must be paid. Typically the obligation would affect only employees whose hourly rate of pay was at minimum wage or slightly higher.

--Elizabeth Winfree-Lydon, Senior staff consultant, The Employers Group

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Question: I work as a temporary engineer for a small company. I’m paid on an hourly, W-2 basis. I was told that if your hourly wage is either five or seven times greater than the state’s minimum wage, then you are only entitled to straight time for any work performed over eight hours in a day or 40 hours in a week. What are the rules regarding overtime for employees such as myself?

--D.R., Irvine

Answer: One of the most misunderstood and abused labor laws in Southern California concerns overtime rules. The Shop Talk column appears to answer more questions regarding overtime than any other topic. According to the more protective state rules, non-exempt employees working more than eight hours in one day or 40 hours in one week receive 1 1/2 times their normal compensation for those hours. Employees working seven days in a row receive for the seventh day 1 1/2 times their normal compensation for the first eight hours and twice beyond that. Employees working more than 12 hours in any one day receive twice their normal compensation for such time.

According to federal rules, if you are not paid on a salary basis, you are non-exempt and entitled to such compensation. There are other rules that have been discussed previously in this column regarding exemptions. There is no rule restricting you from receiving overtime compensation if your hourly wage is five or seven times greater than the state’s minimum wage, as your employer contends.

The only exception that even comes close to this is one for mercantile, retail or service establishments that make employees exempt if more than half of their compensation is in the form of commissions and their compensation is more than 1 1/2 the minimum wage rate. As an engineer, who is presumably not an a commission basis, you do not qualify for this exemption. Thus, you would be entitled to the appropriate overtime compensation.

--Don D. Sessions, Employee rights attorney, Mission Viejo

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Question: I worked for a Fortune 500 company. The division I worked for was sold to a company in Texas, and I decided to give Texas a chance. If I now decide the commute isn’t working, because my fiance and my children are here, would I be eligible for unemployment?--B.F, Irvine

Answer: You are disqualified from receiving unemployment benefits if you quit your job without sufficient work-related cause. Such cause could include some change in the job or working conditions caused by your employer that would make a reasonable person quit under the circumstances (e.g., if an employee worked the same shift for a period of time and the employer changed the shift against the employee’s wishes and the employee was unable to work the alternate shift for some good reason). Another reason might include the employer requiring you to travel frequently and you can’t accommodate the schedule to do so.

The difficulty in your case is that you are working for essentially a new employer in Texas, and it was your choice to commute. The fact that the commute is not working out is likely not due to a change in job or working conditions caused by your employer, which means you probably are not eligible for unemployment compensation benefits.

--Thomas M. Apke, attorney, Professor of business law, Cal State Fullerton

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Question: We’re all salaried customer-support representatives for a computer software company. We were told that our regular work week was 45 hours, and that we don’t receive overtime after working 45 hours. And when we do get paid overtime, it is paid at a rate of our weekly salary divided by 45, not by 40.

In April we were told orally that we would receive a weekly pay raise. On our paychecks, the amounts are not broken out an hourly basis, so it is difficult to determine how much the raise actually was. When I ultimately figured it out, I found that the raise was about $20 a month less than what I and five other employees were promised. Do I have any rights in this regard?

Are companies required by law to detail base pay on paychecks and break it out from overtime and commissions? Also, just two months ago we were told--again, not in writing--that we could no longer receive overtime but would have to take it in compensatory time. Is that legal?

--P.D., Irvine

Answer: Your question raises a number of issues: 1) Wage and hour laws require overtime pay for any hours worked in excess of 40 per week, and an employer generally may not require an employee to accept compensatory time in place of overtime pay. In certain situations, however, an employee may request compensatory time. 2) While employers who pay hourly wages must provide employees with the total hours worked, I am not aware of any legal requirement that a paycheck break out overtime and commissions from base pay. 3) Absent a specific agreement, a promised pay raise is probably not enforceable.

--Calvin House, attorney, Fulbright & Jaworski L.L.P., Adjunct professor, Western State University College of Law

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Question: I was recently laid off from my job as a building and equipment mechanic at McDonnell Douglas. Before I was let go, I applied for two openings for the same job classification at the company’s plant in Long Beach. Despite 15 years’ experience with the company, the jobs went to two other people--including a former co-worker with less experience.

I really think I was not hired for those jobs because I have a reputation as a whistle-blower who has filed numerous grievances about work being removed from our job classification. And though I’d like to think this has nothing to do with it, I’m African American and the two men hired were white.

My former union says it’s not a union matter, so I have to pursue it on my own. Do I have a case regarding discrimination in hiring?

--E.T., Los Angeles

Answer: Whistle-blower protection laws apply in cases where the employee reports an employer’s violation of state or federal law. This generally occurs in cases where an employer breaches a government contract or knowingly manufactures a product in violation of government standards. For the most part, an employee is not entitled to whistle-blowing protection when he reports an employer’s violation of an employment contract or collective bargaining agreement. Instead, the proper recourse for your claim may be an action for breach of contract or filing an unfair labor practice charge with the National Labor Relations Board.

A race discrimination claim requires some proof your employer relied on your race as a determining factor in denying you the position. Your initial burden is to show that you are a member of a racial minority, you applied and were qualified for the position, you were denied the position, and the position remained open or was given to another person not of your race.

An employer can successfully rebut your case by showing it had a legitimate business reason to deny you the position, such as you were not qualified or the selected candidate was more qualified.

Nonetheless, you should contact the California Department of Fair Employment and Housing and/or the federal Equal Employment Opportunity Commission to determine if you should file a race discrimination claim.

--William H. Hackel III, Employment law attorney, Spray, Gould & Bowers

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Question: Eighteen months ago, I was offered and accepted a wonderful job as general manager of a nonprofit trade association representing an industry I had worked in for 35 years. I report to a board of directors consisting of volunteers from various phases of the industry. They are unpaid and serve for two or three years as “trustees.” On July 1 of this year, a new president of the board began a one-year term. On July 12, he began a quiet campaign to persuade me to retain the services of his son, a CPA.

Essentially, he wants me to switch our account from the accounting firm that has done our work very satisfactorily for five years to his son’s firm. I am not inclined to do it for many good reasons but primarily because I am quite sure the membership at large would not approve of it and I would take the heavy hit if I did it.

I am reluctant to put the issue before the board because it would embarrass him or he would deny having made the request. I had hoped the issue would “go away of its own weight,” but it hasn’t. What does the law say about this kind of situation? Do I have any legal recourse or possible support from the state Labor Department?

Answer: You probably have no recourse from any state agency. There is no statute or case law that addresses conflicts of interest of the nature that you have described.

However, it is possible that the president’s actions violate the by-laws of your organization. If they do, you could point that out to him, and perhaps he would back off. If he does not, however, I see no recourse other than raising the issue somehow with the full board or, if there is one, the executive committee of the board.

--Michael A. Hood, Attorney, Paul, Hastings, Janofsky & Walker