As difficult as it is to comply with California’s daily overtime rules, it is easy to forget the one form of flexibility provided to employers — make-up 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. This Friday’s Five covers what make-up time is, and the general requirements for it to apply under the California Labor Code.

What is make-up time?

Make-time time can offer employees and employers some flexibility in scheduling.  For example, it offers employees the ability to take time off work without having to use their paid time off (PTO), sick leave, or vacation time.

For example, take an employee who is scheduled to work from 8 a.m. to 5 p.m. five days a week, leaves work 1 hour early on Wednesday in order to pick up his child from school. On Thursday, the employee asks if he can work until 6 p.m. to make up the missed time on Wednesday.  If the employer agrees to this, the employee can work the 9 hours on Wednesday, and the employer would not be required to pay overtime for this hour of work. 

California Labor Code section 513 set forth the requirements of how and when make-up time can be used.  Make-up time is different than comp time, which we will cover in a different article soon.

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:

Requirement #1: An employee may work no more than 11 hours on another workday, an not more than 40 hours in the workweek to make up for the time off;

Requirement #2: The time missed must be made up within the same workweek;

Requirement #3: 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

Requirement #4: Employers cannot solicit or encourage employees to request makeup time, but employers may inform employees of this option.

Remember, 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.