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California OT pay requirements California California

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  • California OT pay requirements California California

    I work in a power plant where we work 12 hr rotating shifts. The company we work for has recently changed our overtime pay policies, here are some of the problems we are having any help or insight into whether it is legal or not is greatly appreciated.

    1) When we come in on our days off for shift coverage or any other misc reasons concerning the plant they are refusing to pay us overtime, even though it is above and beyond our regularly scheduled work shifts which is scheduled out a year in advanvce.

    2) We are required to wear uniforms to be changed out with all required ppe on at shift change which on average ads up to about 15min coming in and out at the end of the day. Our uniforms stay at work and they launder them. At shift change (once we have changed out) we perform an operator to operator shift passdown which can take anywhere from 5-30 more minutes sometimes even up to an hour at times depending on what is going on it the facility. Our management is refusing to pay for our time of changing out or shift change. All of us operators are concerned about the legalities of this not to mention the safety hazards concerned because as of tonight our management team put out a letter stating that shift passdowns are no longer required in order to avoid paying the overtime.

    3) And finally our management is notorious for changing our rate of pay for the previous weeks worked in order to avoid paying overtime.

    So there you have it, again any input or insight into whether these pay practices are legal or not are greatly appreciated. If not any link to a good labor lawyer is also appreciated.

  • #2
    1. Regarding overtime:
    - Is your employer governmental in nature? The government lives by different rules then private sector employers.
    - Shifts/schedules do not determine overtime. "Normal" overtime is a function of CA daily overtime rules, plus the federal weekly overtime rules. Basically determine what workweek and workdays are. Legally this is not the same thing as shifts and schedules. Every employer I have every worked for had a workweek ending Sunday midnight, and workdays ending midnight, even though none of the many shifts/schedules ended then.
    http://www.dir.ca.gov/dlse/FAQ_Overtime.htm
    - And is there any chance your employer has an Alternate Work Schedule? Basically a CA-DLSE approved change in the CA daily overtime rules specific to your employer.
    http://www.dir.ca.gov/databases/dlsr/DLSR-AWE.html

    2. Regarding time spent changing uniforms, the following is from the CA-DLSE manual.

    46.6.4 Changing Uniforms or Washing Up at Work. Time spent changing clothes or washing up on the employer’s premises is compensable if it is compelled by the necessities of the employer’s business. (O .L. 1994.02.03-3; 1998.12.23) It should be noted, however, that for enforcement purposes, the Division utilizes a de minimis test concerning certain activities of employees (See Lindow v. United States 738 F .2d 105 (9th Cir.1984)) Under this test the Division will consider (1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time, and (3) the regularity of the additional activity. (O.L . 1988.05.16)

    46.6.4.1 The only federal definition of the term “hours worked” is contained in the FLSA at 29 U.S.C. § 203(o) which simply excludes “any time spent in changing clothes or washing at the beginning or end of each work day.” Federal case law, however, has limited this exception and has held that any actions which are an integral and indispensable part of the employee’s principal activity task are compensable. (Steiner v. Mitchell, 350 U.S. 247 (1956) holding that time spent showering and changing at the beginning and end of each day in a battery plant is compensable.)


    3. Regarding changing rates of pay, that is sort of a function of advanced notice. If the notification occurs prior to the work being done, then it is likely legal. If it occurs after the work being done, it is likely not legal. Past that CA has a general prohibition against use of the Fluctuating Workweek method, a legal federal method in which base wages stay put while hours work vary. CA's prohibition is broad enough to likely include this. This is discussed in the CA-DLSE manual, start at section 48.1.4 and the discussion runs for several pages (more then I feel like copying over).
    http://www.dir.ca.gov/dlse/Manual-Instructions.htm
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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