This Friday’s Five comes on Cinco de Mayo – how appropriate. The U.S. House of Representatives passed the Working Family Flexibility Act, now it is being considered by the Senate. President Trump has indicated that he would sign the bill if it makes it to his desk. Five issues California employers need to understand surrounding comp time:
1. What does the Working Family Flexibility Act provide?
The law passed by the U.S. House of Representatives adds sections to the Fair Labor Standards Act (FLSA) by allowing employers to offer employees compensatory time instead of paying them for overtime worked. The bill provides for the following:
- Comp time is accrued at the rate of not less than one and one-half hours for each hour of overtime pay is required under the FLSA;
- Private employers that are not unionized are required to enter into a written agreement with the employee about the comp time, and the agreement must be voluntarily entered into by the employee; and
- The employee must have worked for the employer for at least 1,000 hours for the employer for a continuous period in the 12-month period before being eligible for comp time.
2. The Federal legislation will unlikely effect California employers
California law generally prohibits most employers from offering comp time in lieu of paid overtime. California law requires employers to pay overtime on a more stringent basis than the FLSA (below is a description of California’s daily overtime requirements). California’s Labor Code specifically prohibits any employee from waiving their rights to overtime under the Labor Code. See Section 1194. Therefore, because California law is more stringent and provides employees more protection than the FLSA (and the proposed Working Family Flexibility Act), California employers would still need to comply with California law even if the Working Family Flexibly Act is passed into federal law.
3. California’s unwaivable daily overtime requirements
Under California’s Labor Code, time and a half overtime is due for (1) time over eight hours in one day or (2) over 40 hours in one week or (3) the first eight hours worked on the seventh consecutive day worked in a single workweek; and double time is due for (1) time over 12 hours in one day and (2) hours worked beyond eight on the seventh consecutive day in a single workweek. The DLSE provides a good summary here.
4. California employers can offer makeup time to employees, but there are strict requirements that must be meet
California employers are not without any options however, as it is easy to forget the one form of flexibility provided to California employers: makeup time. This provision allows employers to avoid paying overtime when employees want to take off an equivalent amount of time during the same work week. There are, however, a few requirements that must be met to ensure that the employer is not required to pay overtime for the makeup time. For instance:
- An employee may work no more than 11 hours on another workday, and not more than 40 hours in the workweek to make up for the time off;
- The time missed must be made up within the same workweek;
- The employee needs to provide a signed written request to the employer for each occasion that they want to makeup time (and if employers permit makeup time, they should have a carefully drafted policy on makeup time and a system to document employee requests); and
- Employers cannot solicit or encourage employees to request makeup time, but employers may inform employees of this option.
5. Will the federal legislation influence California to provide similar flexibility to workers?
If the Working Family Flexibility Act becomes federal law, it is unlikely to influence California’s legislators to draft a similar state law. The Democrats in the U.S. House all voted against the bill, and the left is vehemently opposed to the bill, even though it provides for the payment of all comp time accrued but not used when the employee leaves employment. Such opposition from the Democrats make it unlikely to be considered in the California legislature.