I'm a little confused about CA 7th day rule.

I have read http://www.dir.ca.gov/dlse/FAQ_Overtime.htm and understand it except I am unclear about what the definition of the 7th consecutive day of work would be.

I did see in the linked definition "Eight hours of labor constitutes a day's work".

So does that mean the hours worked in the preceding 6 work days in the pay period must at least be 8 for them to count as a 'work day' for this count?

Assuming Sun-Sat work week, if someone worked:

Sun 2
Mon 2
Tues 2
Wed 2
Thurs 2
Fri 2
Sat 2

Would that be calculated as Reg:14 O/T:0 because although though 7 consequtive calendar days were worked, each of the preceding 6 days were not "a day's worth of work" because the hours worked were less than 8?

Thanks

There is something called a "workweek" (see below) that is defined in federal law (FLSA). All states including CA follow this federal rule (not that they have any choice in the matter).

You need to find out what your company is using for your workweek. Once you know that, then your question can be answered. Your question is trying to redefine that workweek as meaning "7 consecutive calendar days worked", which is not what the law says.

http://www.dol.gov/dol/allcfr/ESA/Ti...CFR778.105.htm

29 CFR 778.105 - Determining the workweek
An employee's workweek is a fixed and regularly recurring period of 168 hours--seven consecutive 24-hour periods. It need not coincide with the calendar week but may begin on any day and at any hour of the day. For purposes of computing pay due under the Fair Labor Standards Act, a single workweek may be established for a plant or other establishment as a whole or different workweeks may be established for different employees or groups of employees. Once the beginning time of an employee's workweek is established, it remains fixed regardless of the schedule of hours worked by him. The beginning of the workweek may be changed if the change is intended to be permanent and is not designed to evade the overtime requirements of the Act. The proper method of computing overtime pay in a period in which a change in the time of commencement of the workweek is made, is discussed in Secs. 778.301 and 778.302.

From the CA website that you cited:
workweek Any seven consecutive days, starting with the same calendar day each week beginning at any hour on any day, so long as it is fixed and regularly occurring. "Workweek" is a fixed and regularly recurring period of 168 hours, seven consecutive 24-hour periods. An employer may establish different workweeks for different employees, but once an employee's workweek is established, it remains fixed regardless of his or her working schedule. An employee's workweek may be changed only if the change is intended to be permanent and is not designed to evade the employer's overtime obligation.

Hi DAW,

I understand what a work week is, 168 hrs, seven consecutive 24-hour periods...no problem there.

In my example, I defined the work week as begining on Sunday (12:00 AM) and ending on Saturday (11:59pm).

My question is still unanswered how many of each type of hours would that employee be required to be paid in CA?

Thanks

Having an employee work 2 hours every day would not be prudent of the employer. However, since there are no further defintions from the DLSE of how many hours constitute a "day of work", a employer should pay the 2 hours on day #7 at overtime. Do you work such a schedule or is this just a rhetorical question? My clients struggle with this one and try to ensure that the employees work at least 4 hours every day before they would be subject to the 7th day overtime rule. Or, don't pre-schedule these kinds of shifts. My clients are hospitals. In reality, a work day for a nurse can be anywhere from 2 to 24 hours.

While I believe the DLSE would consider the agreed upon schedule to be that employee's "day of work", I would contact them myself and ask. If they provide an answer, please post it back here.

Hi,

Ok, make it 4 hours each day instead of two. Same question.

How much of each type of hours does the employee get paid?

I'm looking for a clear, definitive, reliable answer for what is meant by "the 7th consecutive day of work".

What constitutes a "day of work" for each of the prior six days in that rule that triggers the 7th day rule in to effect?

It seems to me the definition just above (in the linked article), "Eight hours of labor constitutes a day's work" would lead me to believe that the 7th day rule only is applicable if the employee worked at least 8 hours in each of the preceding 6 days of the work week.

Anybody? :-)

Thanks,

The link definition you found, ""Eight hours of labor constitutes a day's work", is probably all you are going to find. It is also referenced in the wage orders. The wage orders qualify CA labor law for different types of jobs and industries.

Wage order #5 reiterates that same definition of a workday.
http://www.dir.ca.gov/dlse/WhichIWCOrderClassifications.PDF
http://www.dir.ca.gov/IWC/IWCArticle5.pdf

In both your scenarios, then, the employee would not qualify for overtime on the 7th day of work. You would have to work 8 hours for all 7 days of the workweek to get overtime on the 7th day.

Again, for a definitive answer, call the CA DLSE and ask. Then call the next week and ask again. You might get a different answer each time you call.;)

Also, the spirit of the overtime laws in CA were to prevent overworking of employees by penalizing employers (i.e. making them pay overtime). And to provide "rest" for the workforce.

Seems to me that working only 4 hours every day still provides plenty of rest to the employee and wouldn't be in the spirit of the law.

Hi martinigirl,

Thanks so much for your posts, thoughtfulness, and input.

Yeah, I'm familiar with the wage orders and I agree, that's all you find, which is leaving me with this question.

Seems odd that a rule that's been around for a few years now in such a populous state, that this isn't better clarified.

I'm hoping for tomorrow when people come to work and check the site, that someone else may have the answer.

I need a definitive answer as I am creating time clock software for others use, so it has to be right.

If/when I get a definitive answer, I will post it here for others' benefit.

I may have to call the DLSE, but was hoping that someone here would know.

Thanks again.

Ah, I wondered why you were asking. I work for a company that creates timekeeping software for hospitals (not just CA). We added a field that lets the customer input the # of hours that they think is a day's work, for each overtime category.

You have to draw a fine line between understanding the labor code and interpreting it for the customer, then advising them. It's the advising you don't really want to do, unless you are an attorney. If you want further info, you can PM me.

So does that mean the hours worked in the preceding 6 work days in the pay period must at least be 8 for them to count as a 'work day' for this count?

Assuming Sun-Sat work week, if someone worked:

Sun 2
Mon 2
Tues 2
Wed 2
Thurs 2
Fri 2
Sat 2

Would that be calculated as Reg:14 O/T:0 because although though 7 consequtive calendar days were worked, each of the preceding 6 days were not "a day's worth of work" because the hours worked were less than 8?

Thanks

The exact law the overtime rule comes from is cited below. There is nothing in the law that says that 8 hours must be worked in the previous 6 days in order for the "7th day rule" to apply.


California Labor Code 510:
(a) Eight hours of labor constitutes a day's work. Any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee. Any work in excess of 12 hours in one day shall be compensated at the rate of no less than twice the regular rate of pay for an employee. In addition, any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee. Nothing in this section requires an employer to combine more than one rate of overtime compensation in order to calculate the amount to be paid to an employee for any hour of overtime work.

DAW, your site tell us only that hours more than 8 on the 7th day are paid at doubletime.

The 7th consecutive day rule talks about 1.5 times the regular rate. From OPs link "One and one-half times the employee's regular rate or pay for all hours worked in excess of eight hours up to and including 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day of work in a workweek..."

The question is, did you have to work 8 hours on all previous 6 days to get the overtime rate for the first 8 hours. A defiition of a day of work is eight hours so we think you do have to work 8 hours for the previous six days. I have yet to talk with anyone who can confirm this for me. I will be attending a CA labor law seminar in February, I'll ask the attorney who is presenting what he thinks.

I would say no because there is nothing in the law stating that this is a real requirement. I would say that the rules are exactly what the law says the rules are, and if I was an employee whose employer was trying to impose this made up "employee must work 8 full hours in the first 6 days before we will pay overtime on the 7th day", I would promptly file a wage claim with CA-DLSE and expect to win.

Do you have any actual support that this is real rule and not just something that the employer made up? Would not this also mean that the entire 150% portion of the 7th day rule is a fake rule that would never occur since if we follow the 8x6 prequiste, then the FLSA 40 hour in the work week rule would have also occured?

------

Note. I will extend the underline on my earlier post to the rest of the 7th day rule.

This is why we leave it up to our clients. They can talk with their legal counsel and decide what they think. Thanks for your input, DAW.

I still say if I was the employer, to be on the safe side of the CA DLSEs wrath, I would pay the first 8 hours on the 7th day at overtime, no matter how many hours were worked on each of the 6 preceding days. As long as it is the 7th consecutive day, they get overtime.

I would also do my best not not to have silly shifts like 2 or 4 hours.

Hi martinigirl & DAW,

Thanks for your replies.

I used to own and operate a payroll service bureau in CA.

I am not trying to represent some company trying to cheat their employees and out of anything.

I am a knowledgable payroll professional that has discovered ambiguity in the wording of the law and seeking clarity.

When the new law went into effect, I placed several calls to the legistlator who co-wrote the bill that got passed, I can't remember who now. Their staff wasn't helpful in definitively answering.

The question came up from time to time from our service bureau clients. We told the client that the wording was unclear to us. When reading the law's text, the term "day of work" for purposes of the 7th day rule could mean two different things:

1. As we all have cited, the CA labor code 510 defines a day's work as "Eight hours of labor consititues a day's work" (which is defined just above where 7th day rule is defined).

2. One of the 24 hour periods in a work week that employee has labored some quantity of hours.

DAW, I have favored #1 because that's what's explicitly defined by that law. Why else would that sentence be there?

#2 seems to take a common understanding approach. So with all due respect, although your postion may be correct, the law's wording does not exactly say that based on it's definition of a day's work.

In the past, I left it up to the client to decide how it should be applied, but encouraged them to error on the side of caution because of the ambiguity.

But, now I'm creating a piece of software; it is important to know for sure.

If the legislators who passed the law and the DLSE cannot give you a definitive answer, why in heaven's name would you think someone here can?

cbg,

The staff that took my call was probably an intern gatekeepeer who just wanted the issue to go away. I was busy and it worked. I went away.

Have not tried to call the DLSE yet.

I am attempting to draw on the knowledge and experience of a collection of knowledgable payroll professionals to see what they know vs. one representative of the DLSE.

Cetainly, you have called the IRS and gotten conflicting answers?

Not a helpful post.

Why not just call up CA-DLSE and ask them? Maybe even get an opinion letter if that is what it takes. That is where the wage claims would be filed with if someone disagrees with their handling. I have done payroll for some pretty large CA based employers for a few decades now and this is the first time I have heard anyone suggest that particular interpretation. There are a whole bunch of published artiticles that do not agree. This would be a good thing to not get wrong and prudence would suggest that CA-DLSE could hard answer the question.

The problem I have with your interpretation is that it means that for the first eight hours worked on the seventh consecutive day of work in a workweek is a legally meaningless rule that will never, ever happen unless the employer is not subject to the FICA hours worked past 40 in the workweek rule.

I generally try to stay very main stream in following labor laws, and your interpretation while maybe possibly correct is not main stream.

Hi DAW,

I wanted to collect the best arguments and their substatiation before calling the DLSE.

I have reviewed past rulings to see if there has been something that already clarifies it and stumbled upon, http://www.dir.ca.gov/dlse/opinions/1986-12-01.pdf and see when this law was in effect before (remember it wasn't for a while), the wording was more clearly stated as:

"seventh consecutive day of the workweek"

vs. what's now stated as:

"seventh consecutive day of work in a workweek"


It's that phrase "day of work" that is troubling. It is defined as "Eight hours of labor consititues a day's work", but as seen in these Thread, it can be interpreted at least two different ways...that makes it ambiguous.


And the old law had a provision that limited when that 7th day rule would kick in. "Overtime pay is also due for hours worked on the seventh consequtive day of the workweek unless the total number of hours worked is less than 30 for the week and less than 6 hours per day."

Now that's a clear, definitve rule. Too bad they weren't as clear when they re-inacted it.

DAW, you make an interesting point about the overtime on the first 8 hours of that 7th day. I always thought that was redunant for clarity sake; ofcourse they'd be paid 1.5 for the first 8 because they were already over 40/wk. I always concluded the effective provision of the 7th day rule is the double-time after the first 8 hrs, but for clarity sake mentioned the 1.5.

I'm calling the DLSE. I'll post what I find out.

Thanks again.

If you are trying to program software, you should hire an attorney. What if someone comes along on this board and says 'I know the answer because....' and you decide to agree and program accordingly.

Later, an employee feels what you did was wrong and sues their employer and you as the maker of the software who put an incorrect calculation in.

Is your defense going to be "But I got advice from someone on a labor law forum"?

You either need to let the customer determine what they deem to be the correct interpretation (from their experience and/or legal advice) or hire legal counsel.

Or, as mentioned several times, write the DLSE and get an opinion letter to keep in your files for any future questions.

Hi martinigirl,

Very good advice.

I would not rely on an answer that I could not validate in writing.

My purpose for posting is that I was looking for direction to see if anyone:

• Could explain it in an undeniable way;
• Had an audit experience;
• Has knowledge of where a definitive written answer is to be found.

If I can't get something in writing, then I will probably error on the side of caution.

I am also going to put the disclaimer about the method used and that it's our interpretation of the law.

I am trying to get someone at the DLSE now.

What started out to be a relatively quick and inexpensive project for one client has turned into hours. I forgot how complicated this stuff can be: split shift premium, reporting time, 7 day rule. Now I remember why I sold to Paychex. :-)

Thanks again for the admonition...sound counsel martinigirl.

There are times when we wonder why we do business with CA employers. 90% of the time we know far more than our customers so they rely on us to explain it all to them. Very dangerous practice, for everyone.

If you get an answer from the DLSE, I would appreciate you posting it. I can let my programming team know and we can ask our lawyer what he thinks.;)

Can't stop thinking about this, especially what DAW said. If you worked 8 hours on all the preceding days, you would already be entitled to overtime on day 7, right? In fact, you would be getting overtime starting on day 6 because the first 5 days were 40 hours.

So, what's the point of a 7th consecutive day overtime provision unless it's for days worked that normally wouldn't incur overtime, such as 7 straight days of 4 hours each!

And the old law had a provision that limited when that 7th day rule would kick in. "Overtime pay is also due for hours worked on the seventh consequtive day of the workweek unless the total number of hours worked is less than 30 for the week and less than 6 hours per day."


Just to be clear, while the "hours past 8 in the day rule" has been part of CA law since maybe the 1910s (prior to FLSA even), the original double time and 7th day (and the old 6th day) rules were just a regulation issued by CA-IWC not directly supported in law (maybe originally established under Gov. Pat Brown). During the Governer Wilson admistration, CA-IWC reversed this rule in January 1998. Then eventually under Governor Grey Davis the actual law was revised (effective 2000) making double time a matter of law and not just regulation.

My understanding is that the Eight hours of labor constitutes a day's work language goes all the way back to the original 1910ish law.

After placing multiple calls to multiple DLSE offices with disconnections after being on hold or ringing off the hook, I finally spoke with a supervisor in San Fransicso office named Stephanie. Unfortunately I got disconnected from her before getting everything cleared up.

She said the for purposes of determining the "seventh consecutive day of work in a workweek", a 'day of work' is any labor perfomed during the 24 hour workday. I asked about the 8 hour definition of a work day, she said that's not defining the 'day of work' for this purpose, only for defining it for straight time pay. Whatever. (I think its also for used for reporting time pay calc if there's no work schedule).

So "seventh consecutive day of work in a workweek", would mean each of the preceding six 24 hour periods the employee must have labored in some quantity in the work week. This is what DAW had basically said.

HOWEVER, Stephanie pointed out that old regs still may be in effect limiting the 7th day OT pay requirement. Look at the IWC wage order for the applicable industry.

She arbritarly chose IWC Wage Order 4-2001 (Clerical), she directed me to:
http://www.dir.ca.gov/IWC/IWCArticle4.pdf, Sec. 3(F) on printed page #5:

(F) An employee may be employed on seven (7) workdays in one workweek when the total hours of employment during such workweek
do not exceed 30 and the total hours of employment in any one workday thereof do not exceed six (6).

She cited this as exemption from having to paying O/T on the seventh day if these conditions are met. I I replied that I don't see any mention of that exemption in the verbage of the order. She said it referred to paying at straight time, but again, unfortunately I see no written evidence to support that.

Then, she also cited DSLE Enforcement Manual http://www.dir.ca.gov/dlse/DLSEManual/dlse_enfcmanual.pdf
pdf Page 188 section 48.3

Work On Seventh Day In Workweek. Formerly the IWC orders had language permitting employment of 7 days in a workweek, “with no overtime pay required” provided the total of hours of employment do not exceed 30 in the week or 6 in any one day. In other words, such employees were exempt from the seventh day of rest requirement and the seventh day of work premium pay requirement if the 30 in the week or 6 in any one day test was met. Such exemptions, unless repealed, remained valid despite the
provisions of Labor Code § 510(a) by virtue of the language of Labor Code § 515(b )(2).

So, I guess we must look back to the 1997 IWC Wage Order for the applicable industry, see if it's there, and then check to see if it hasn't been repealed (where do we find that out?), then an employer can apply that limit to paying OT on the 7th day? She said, "Yes".

Why isn't that on http://www.dir.ca.gov/dlse/FAQ_Overtime.htm or clearly, stated in the IWC Wage Order, or postively stated in the code? She thinks it is.

In writing this email, I also looked one paragraph below in the DSLE Enforcement Manual

Section 48.3.1 In all the new orders except 14 and 15, the IWC deleted the phrase “no overtime pay required” permitting employment of 7 days in a workweek provided that total hours for the week do not exceed 30 with no more than 6 hours worked in any one day but requires the payment of premium pay on the seventh day of work. Consequently, all employees (except those employed under Orders 14 and 15) meeting the hours criteria could be employed for seven days in a week if they were paid the applicable premium pay including for all of their hours worked on the seventh consecutive day of the workweek pursuant to Section 510(a).

That's a difficult read and I don't think witten correctly. Frustrating when one person writes something complex that is poorly constructed that others must somehow obey. But, it seems to require premium pay for all hours worked on the 7th day. If that's that case, it seems to condrdict the paragraph just above it Sec. 48.3.

Labor Code Link:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=00001-01000&file=500-558

Unfortunately, we got disconnected. I've tried calling back but it's just busy.

I may try back again to get further clarity. Lots of hours spend on something that should be really clear. If I am having problems understanding what to do with my advanced experience, how does the average employer?

Hi martinigirl,

You make a good point. It's redundant otherwise.

Maybe it's redundant for clarity, maybe it's the missing clue that reinforces that those 4 hours on the seventh day would be OT.

Who knows.

I'm Ok with conceding to any hours worked in a workday constitutes a day of work for the 7 day rule.

Personally, I think the way it's written with the definition "Eight hours of labor consititues a day's work", can easily lead to confusion and should be clarified.

Now the question does the exemption from paying OT on the 7th day still apply to the employee who works no more than 30 hrs/wk and 6 hr/day?

This stuff can make you crazy. While I hate to say good things about IRS, at least they have a system of Revenue Rulings and Revenue Procedures in which when these sort of questions arise, they (eventually) issue general guidance on the issue. Federal and state DOL (IMO) are way too dependant on opinion letters, which legally only apply to employer in question and only serve as weak guidance if the facts are very similar.

The PTO reduction for partial days worked for Exempt Salaried employes rules are if anything even more confused post-Conley. If you look at every single section in the Enforcement Manual that discusses this, some of the section apparently contradict each other. Apparently CA-DLSE issued "clarification" post-Conley in some sections and not others.

There is a single available method to resove the issue and that is to restate your question in the form of a request for an opinion letter. It will take a while to get an answer, but the answer will be as official as these things ever get. Should you get a letter, please post a copy for the rest of us. Please also feel free to get a clean answer on the PTO question while you are at it.

Hi DAW,

Yes, it does make me very frustrated.

I agree, requesting an opinion letter is the way to go at this point.

I don't know if I'm going to proceed with this project or requesting the letter.

But, if I do, I will post it back.

I don't think I had a Paid Time Off (PTO) question.

Thanks

Thanks so much for posting after you got more info. I found this thread incredibly helpful tonight.