Employer Cuts Base Pay After 8-Hour OT Rule Returns

Q: I work for a hospital in Orange County. We were on eight-hour shifts until the state eliminated overtime pay after eight hours. At that time the hospital put us on 12-hour shifts, three shifts per week, without any compensation for the lost four hours.

Now that the state has reinstated the eight-hour rule, the hospital has decided to keep us on 12-hour shifts, but has reduced our base pay to make up for the four hours of overtime pay. Is this legal?

--J.T., Huntington Beach

A: Probably not, although the law is not entirely clear.

Section 511(c) of the California Labor Code, which took effect Jan. 1 as part of Assembly Bill 60, the law requiring a return to daily overtime in California, provides that an employer may not reduce an employee’s regular rate of hourly pay by adopting or repealing an alternative workweek schedule.

There is a good argument that your situation would not be covered because the law has required that certain alternative workweek arrangements be approved by a secret ballot of employees who would be affected. In your case, your employer simply imposed the original alternative work schedule.

On the other hand, the chief counsel for the state labor commissioner stated in a recent policy memo that Section 511(c) applies to any reduction in wage rates resulting from the nullification of “any” alternative workweek schedule by the new law.

Because your 12-hour shifts were a form of alternative workweek, and because continued use of such shifts without paying overtime was nullified by the new law, there is a good chance the labor commissioner would find the reduction in your pay rate was unlawful.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Meaning of ‘Temporary’ Varies by Circumstance

Q: I have been a temporary employee at a large company in the same position for nearly two years. I’ve heard that a temp can’t serve in the same position this long without being offered permanent employment. Is this true?

--J.G., Burbank

A: There are no laws that strictly define when a temporary employee becomes a permanent employee.

In some court cases, companies have been ordered to give temporary employees certain benefits enjoyed by permanent employees after a certain number of years. These cases are based on specific circumstances and do not apply to every situation.

If you are a union member, a union contract may govern this issue. A government regulation may apply if you are a civil servant.

Evaluate the company’s initial offer or letter to you, as well as relevant language in an employee handbook. It’s possible that the company may be governed by promises to you, or by a written policy detailing a time frame for making temporary employees permanent.

You might also want to compare your treatment with that of other employees over the years. If the company is unduly delaying your transition, try to determine if it is for illegal reasons, such as discrimination.

--Don D. Sessions

Employee rights attorney

Mission Viejo

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If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873, or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.