Overtime Rules Vary for Non-Standard Workweeks

Question: Our shop is on a 10-hour workday, Monday through Thursday, with Friday off. Recently, I was off on a Tuesday for three hours in order to keep a doctor’s appointment. On Friday of the same week, I worked eight hours of overtime. When I received my paycheck, I was paid 40 hours of straight time and only five hours of time and a half. Should I have to work overtime for straight-time pay?

--R.G., Long Beach

Answer: The application of the wage and hour laws to non-standard workweeks like yours varies, depending upon the type of business that employs you. Some employers must pay overtime for any hours worked on the fifth day of a four-day workweek composed of 10-hour days. Others are not required to do so. To find out which rules apply to your employer, contact the local office of the California Division of Labor Standards Enforcement at (714) 558-4111.

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

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Question: I worked for nearly five years as a truck driver and I injured my back while on the job. I filed a workers’ compensation case in 1992. My company sent me the paperwork to terminate my pension/profit-sharing plan, dated back to the date of the injury, which I signed for my check to be sent this year. Would this action be considered grounds for illegal job termination or was that just the termination of my benefits to the pension/profit-sharing plan?

--G.B., Buena Park

Answer: Simply terminating plan benefits does not necessarily mean that you have been terminated from your job. Often, employers may terminate the plan for all of its employees or may have extended to you the option to terminate it prior to the termination of your job, resignation or retirement.

It seems very strange that they would terminate it, however, as of the date of your injury. There are laws that prohibit retaliation against an employee because of a workplace injury. Such retaliation could be your termination, demotion or the loss of some benefits. The deadline for filing a claim for such improper action is one year from the date it was done.

As a practical matter, the easiest thing for you to do would be to simply call or write your employer and ask for clarification of your job status. Ask them about the reason for the termination of your pension/profit-sharing plan. If they fail to respond, send them a certified letter asking for your lawful right to inspect your employee file. Perhaps the file will contain documentation answering your questions.

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

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Question: My brother-in-law came out of retirement as a floor salesman in a large chain store. He was told that he would be a “part-time” employee that would not be entitled to any benefits or premium pay. But for the nine months that he’s been there, he works eight hours a day and often seven or more days in a row. He is called upon to work holidays, and it is not unusual for him to exceed 40 hours in a week, yet he doesn’t receive overtime pay. Please explain the California laws that pertain to part-time employees.

--E.F., La Habra

Answer: California regulations are silent on the definition of a part-time employee. Most employers maintain employee classifications to distinguish between full-time and part-time employees not only by the number of hours they work each week, but also by the type and amounts of benefits that they enjoy.

Typically, a part-time employee classification is defined as an employee who regularly works fewer than 40 hours a week whereas a full-time employee regularly works a minimum of 40 hours a week on a continued basis.

Whether or not a part-time employee is entitled to benefits is also determined by an employer’s policies or benefit plan documents. It isn’t unusual not to have benefits available for part-time employees. Many employers will also establish seven-day work weeks to begin and end in the middle of a calendar week (i.e., the workweek begins on Wednesday and ends on Tuesday).

Therefore, it is conceivable that an employee can be scheduled to work seven or more days in a row, three days will consequently fall in one work week, the additional four days fall in the next workweek. This will still maintain part-time status because the employee has never worked more than 40 hours in the established workweek. This could be the case in your brother-in-law’s situation.

If this is not the situation, and your brother-in-law is working consistently the equivalent of 40 or more hours each week, he should pursue the matter with his employer for a change of status and benefit rights if available, unless alternative workweek arrangements have been agreed upon.

Also, remember that California regulations require overtime pay if an employee works more than eight hours a day or more than 40 hours in a workweek.

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

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Question: I work for a security company and have found out that they are charging their customers for overtime holiday pay for the security officers’ time, yet not paying these officers the holiday pay. In addition, they don’t pay the officer for the actual time spent on post. (Example: If the employee has to work until 5:21 p.m., he or she only gets paid a quarter of an hour of overtime. The employee has to work to 5:30 p.m. in order to receive half an hour of overtime.)

Are there any rules as to how parts of an hour are accounted for or can the employer make their own rules? Can they do this or is this in violation of labor laws? Is there any recourse I can follow for myself and other employees?

--B.B., Yorba Linda

Answer: As to your first question, what your employer is doing is probably appropriate. What your employer charges its customers for the services it provides is a matter of contract between your employer and the customers.

There is no labor law requirement that the employer pay its employees in exactly the same manner as it charges its customers for the employees’ time. As to the issue of holiday pay, that, too, is a matter of contract between you and your employer. Therefore, if your employer has a policy that certain holidays are paid, and you work on one of those holidays, you perhaps should be receiving additional pay for the time worked on the holiday. If you believe you are not being paid appropriately, you may contact the Division of Labor Standards of Enforcement to pursue a claim.

As to your second question, the general rule is that employers must pay for all hours worked, even very small fractions. However, there is an administrative enforcement exception that allows employers in paying overtime to round off to the nearest 5-, 10 -or 15-minute period, but only if in so doing the employees tend to receive overtime compensation for all hours worked.

It appears from your description that your employer is relying on this exception and rounding to the nearest quarter hour in paying overtime. That is only acceptable if your employer also allows its employees to benefit by rounding off. Thus, using your example, to be allowed to rely on this exception, your employer would have to pay a half-hour of overtime to any employee who worked from 5:23 p.m. to 5:30 p.m. If your employer is not, it may have liability under federal and state labor laws. I would contact the Division of Labor Standards Enforcement if you believe that you have a valid claim.

--Michael A. Hood, Employment law attorney, Paul, Hastings, Janofsky & Walker

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Question: My daughter-in-law has been working part time for more than a year for a medical facility for the orthopedically handicapped. She has worked one shift on Saturday and two shifts on Sunday. She received overtime pay at time and a half for the second shift on Sunday. Her last paycheck contained no overtime pay but was accompanied by a notice--effective at the beginning of that pay period--that she had been changed to an exempt status. This was her first word on the subject.

The facility is having financial problems and has brought in a personnel director who is making these adjustments. Regular staffers have been interviewed individually and offered a four-day workweek of 16 hours a day for the same salary an their previous 40-hour week. They have been told not to discuss this offer with anyone, with the inference that they will not be hired if they do.

This is obviously a non-union workplace. Perhaps they are hoping that the number of employees who do not accept will equal the number they will have to lay off to meet expenses. Are there any laws being broken here? If not, what actions would you advise?

--L.C., Irvine

Answer: You do not say what job your daughter-in-law performs. Certain managerial, administrative and professional employees are exempt from the overtime laws. If she falls into one of these categories, which are defined rather specifically under state and federal law, she is not entitled to be paid overtime regardless of her employer’s past practice.

The “professional” exemption covers only doctors and pharmacists in a health-care facility and the “administrative” exemption does not cover clerical workers, but rather covers only those who perform specialized or technical work or who regularly exercise discretion and independent judgment in their work.

Assuming she is a non-exempt employee, she can be required to work up to 12 hours per day without overtime, provided she does not work more than 40 hours per week and provided that at least two-thirds of the employees in her department vote for the 12-hour workday option after written disclosure and a meeting to discuss it. She would then be entitled to be paid time and a half for all hours over 12 worked in one day.

The four-day, 16-hours-a-day workweek without overtime you mentioned would appear to be unlawful, but since it does not affect your daughter-in-law, she’s probably better off not making an issue of it. With respect to her own pay, she should inform the personnel director that the law requires that she be paid overtime. If she is not paid overtime thereafter, she can file a claim with the state Labor Commissioner. The law contains protections from employer retaliation for employees who file such claims.

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