WORKPLACE LAW - Make-Up Time Policy

Question:

I recently had an employee ask if she could make up some missed work time later in the week. She said she had done this at a previous job, but I was afraid of violating overtime laws or some other restriction so I denied her request. Is this something that I should have allowed her to do?

Answer:

It sounds like your employee was referring to a “make-up time” policy, which her previous employer may have had in place. To answer your question, California employers are not required to provide their employees with make-up time, so you did not do anything wrong by denying your employee’s request. However, make-up time policies are utilized by many businesses, and provide benefits for both employers and employees. For that reason, you may wish to consider putting such a policy into place in your workplace.

Generally speaking, California law requires that an employee receive overtime compensation for time worked in excess of forty hours during a given workweek. The overtime laws also require than an employee receive overtime pay if he or she works more than eight hours in a single workday, and if he or she works up to eight hours on the seventh consecutive day of a workweek. In all of those instances, employees are entitled to receive compensation at the rate of one and one half times their normal rate of pay. Employees are also entitled to receive double-time for time worked in excess of twelve hours in one workday, and for time worked beyond eight hours on the seventh consecutive day of a workweek.

Despite these requirements, there is an exception that allows for some flexibility when it comes to employees who need to miss work in small increments for personal reasons (such as a doctor’s appointment), and who wish to make that time up later in the same workweek. This exception would allow your employee to, for example, miss an hour of work on Monday for a personal appointment, and to then work an extra hour the following day (or any other day that same week) without triggering any overtime obligation on your part. However, there are some restrictions that apply, in addition to the “same workweek” requirement:

  • On the day that the make-up time is worked, the employee may not work more than eleven hours that day or he/she will be entitled to overtime pay. For example, an employee who took four hours off on Tuesday could not work all of those make-up hours (in addition to a regular eight-hour shift) on Wednesday because he/she would be working a twelve-hour workday and would incur overtime. Instead, the employee could split the make-up time and work two extra hours on two separate days, such as Wednesday and Thursday, without the employer having to pay any overtime.
  • The employee may also not work more than forty hours in the workweek as a result of working the make-up time, unless he/she receives overtime pay for those hours.

Make-up time policies can be beneficial to employers because they are generally seen as a benefit for employees, who appreciate the added flexibility that such policies create. These policies also allow employers to recoup time that would otherwise be lost to employees’ personal obligations, without incurring any overtime liability.

If you decide that you want to allow your employees to work make-up time, you should put in place a written policy explaining how make-up time works and what the restrictions and requirements are. In addition to information regarding the hourly restrictions discussed above, your policy should require employees to submit their make-up time requests in writing on a form that you will provide, and should inform employees that their request must be approved in writing before they may take the requested time off or work the make-up time. Employees should also be told that if they take time off and are unable to work the scheduled make-up time, the missed hours will be unpaid, or can be designated as sick leave or vacation if appropriate. Similarly, if an employee works make-up time in advance, he or she must still take that time off even if the time off is no longer needed. Lastly, because employers may not encourage or solicit requests for make-up time, your policy should explain that the use of make-up time is totally voluntary on the part of the employee.

In conjunction with your policy, you will want to prepare a make-up time request form that states the date/time of the requested time off, as well as when the employee plans to make up the missed time. The form should include the eleven hours in a workday/forty hours in a workweek restriction, and should state that the employee’s use of make-up time is voluntary. For record-keeping purposes, you should require your employees to submit a new make-up time request form each time they wish to make use of the policy.
- - - - - - - - - - - - - - - - - - - - - - - - - -
Back to Menu- Work Place Law 2010 Articles