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overtime verses standard time California

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  • overtime verses standard time California

    can you please clarify the overtime / straight time pay rules.


    Example:

    Dan worked 32 hrs and 8 hrs off for vacation.
    he incurred overtime of 8 hrs in that 32 hours.

    I understand that Dan would have to be paid straight time for the ot because he did not work a complete week.

    Dan believes that because he worked over 8 hrs in a day, he is entitled to the ot.

    My grey area is the 8 hours per workday or 40 hours per workweek which one applies when the employee works over or doesn't physically work the entire week.

    Please advise so that I can be completely clear on the issue and fair to the employee.

    Here is the CA statute on the issue that I am using to base my judgement.



    Q. What is the "regular rate of pay," and how is it determined?

    A. Overtime is based on the regular rate of pay, which is the compensation you normally earn for the work you perform. The regular rate of pay includes a number of different kinds of remuneration, such as hourly earnings, salary, piecework earnings, and commissions. In no case may the regular rate of pay be less than the applicable minimum wage.

    Ordinarily, the hours to be used in computing the regular rate of pay may not exceed the legal maximum regular hours which, in most cases, is 8 hours per workday, 40 hours per workweek. This maximum may also be affected by the number of days one works in a workweek. It is important to determine what maximum is legal in each case. The alternate method of scheduling and computing overtime under most Industrial Welfare Commission Wage Orders , based on an alternative workweek schedule of four 10-hour days or three 12-hour days does not affect the regular rate of pay, which in this case also would be computed on the basis of 40 hours per workweek.

    The agreed upon regular hours must be used if they are less than the legal maximum regular hours. For example, if you work 32 to 38 hours each week, there is an agreed workweek of 35 hours, and thirty-five hours is the figure used to determine the regular rate of pay. However, in circumstances where the workweek is less than 40 hours, the law does not require payment of the overtime premium unless the employee works more than eight hours in a workday or more than 40 hours in a workweek. In other words, assuming you are employed under a policy that provides for a 35-hour workweek, the law does not require the employer to pay the overtime premium until after 40 hours in a workweek. If you work more than 35 but fewer than 40 hours in a workweek, you will be entitled to be paid for the extra hours at your regular rate of pay, as overtime premium pay is only required after 40 hours in a workweek.





    Denise Curry

  • #2
    This is not a regular rate of pay issue. This is an overtime hours issue. Regular rate of pay calculations kick in when there is overtime AND additional compensation that must be included in the calculation, such as shift differential, commissions, other nondiscretionary bonuses/compensation. If it's just the base rate of pay (and no other compensation components), then "regular rate of pay" is a given.

    Does this help?
    http://www.dir.ca.gov/dlse/FAQ_Overtime.htm

    And when did Dan actually work the additional 8 hours that you think are overtime?
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

    Comment


    • #3
      I understand that this is an overtime issue. The question is does his working over 8 hrs in a day negate the 40 hrs in a week issue?

      He worked 32 but was paid for 40 because of his vacation pay.

      I've read the CA Q and A page and am still a bit unclear.

      Comment


      • #4
        Let's say Dan worked one 12 hour day, two ten hours day and took a day off as vacation.

        He is owed 8 hours OT (4 plus 2 plus 2), 24 hours regular and 8 hours vacation.
        Senior Professional in Human Resources and Certified Staffing Professional with over 30 years experience. Any advice provided is based upon experience and education, but does not constitute legal advice.

        Comment


        • #5
          Originally posted by DC893 View Post
          I understand that this is an overtime issue. The question is does his working over 8 hrs in a day negate the 40 hrs in a week issue?
          Well, your cite had to do with the calculation of regular rate of pay, so I wanted to make sure you understood that that really wasn't the cite that applied to your question.


          Yes. Once an hour is counted as overtime because it was over 8 hours in the day, it doesn't have to be counted again.
          I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

          Comment


          • #6
            Agreed.

            California Labor Code Section 510

            "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"
            "Reality is that which, when you stop believing in it, doesn't go away".
            Philip K. **** (1928-1982)

            Comment


            • #7
              Anytime an employee works over 8 hours in one work day they are to be paid OT for the time in excess of 8 hours, DT for hours in excess of 12. Regardless of how many days that week the employee worked.

              Weekly OT generally only comes into play if the employee works a 6th (or 7th) day in the work week.

              And yes once an hour is counted/paid as OT it is not counted in the determination of Weekly OT.

              Day 1 - 9 hrs 8 reg 1 OT
              Day 2 - 8 hrs 8 reg 0 OT
              Day 3 - 10 hrs 8 reg 2 OT
              Day 4 - 7 hrs 7 Reg
              Day 5 - 8.5hrs 8 Reg .5 OT
              Day 6 - 4 hrs 1 reg 3 OT

              Weekly Total 46.50 40 reg 6.5OT

              Comment


              • #8
                DC893: Dan worked 32 hrs and 8 hrs off for vacation. He incurred overtime of 8 hrs in that 32 hours. I understand that Dan would have to be paid straight time for the ot because he did not work a complete week. Dan believes that because he worked over 8 hrs in a day, he is entitled to the ot.

                christamcd: Anytime an employee works over 8 hours in one work day they are to be paid OT for the time in excess of 8 hours, DT for hours in excess of 12. Regardless of how many days that week the employee worked.


                You have to be careful when you use the word anytime. Three common exceptions to this general rule come easily to mind:

                1. If the employee is salary exempt, he would not be entitled to overtime premium pay.

                2. If an Alternative Workweek Schedule (AWS) were in place, the employer would not be entitled to overtime premium pay.

                3. If an hourly, non-exempt employee approaches his employer and asks to work 2 hours extra on Mon, Tues, Wed, and Thursday (at straight time only pay) so he can have Friday off AND the request is documented in writing, the employer does not have to pay the employee any overtime premium pay.
                Barry S. Phillips, CPA
                www.BarryPhillips.com

                IRS Circular 230 Disclosure: This response is intended to provide general information and written for educational purposes only. It does not establish a client relationship. This communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any party any matters addressed herein.

                Comment


                • #9
                  I was not aware of #3 - Barry - thanks for teaching me something new!
                  The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

                  Comment


                  • #10
                    No Problem. The legal provisions are contained in Labor Code 513 http://law.onecle.com/california/labor/513.html
                    Barry S. Phillips, CPA
                    www.BarryPhillips.com

                    IRS Circular 230 Disclosure: This response is intended to provide general information and written for educational purposes only. It does not establish a client relationship. This communication is not intended to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to any party any matters addressed herein.

                    Comment


                    • #11
                      Originally posted by BSPCPA View Post
                      You have to be careful when you use the word anytime. Three common exceptions to this general rule come easily to mind:
                      You are, of course, correct.

                      Comment

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