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10 hour days and overtime rule. California

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  • 10 hour days and overtime rule. California

    I did a serch but didnt find an exact thread for my question. I work in home improvement stores doing over night resets building displays. The workday starts at 8pm and ends at 6am the next day.lasting 4 nights in a row. up untill this week we were being paid overtime for anything over 8hours a night. starting this week we were informed that we were to clock out at midnite take lunch and input our time from 8pm untill 12 am and count that as a 4 hour day. clock back in at 12:30am and out again at 6am the next day and back in at 8pm to start a new shift. all in all its only 40 hours but still 10 hour days in order to have the sets done before people come in the store. The company is now saying none of this time is overtime. the 10 hours is the stores rule not the companys. Im having a hard time figuring out what there trying to do and if not paying the 2 hrs a day after the 8 hours is legal. I thought anything over 8 in a shift was time and a half. im not trying to ding them for overtime id rather leave after 8 and get to bed. Can someone please shine a light on this and show me what im missing and how the 2 hours extra in a night is not overtime ?

  • #2
    There is a federal law (FLSA) concept called the workweek. All states including CA must follow this particular law. The workweek is a fixed 168 hour period in time which legally is very difficult to change once set. I personally have no idea what your company has set their workweek to. You will have to ask them. However I can say that my last 4 employers were primarily located in CA, and everyone of them had a workweek ending Sunday midnight. CA has daily overtime and per CA rules, the workday is defined by the workweek. If the employer has a workweek ending Sunday midnight (for example), then each of the workdays must also end at midnight. It is possible for one company to have more then one workweek, but this is logistically very complicated and something that is almost unheard of. Most or almost all companies use a single workweek definition for all employees no matter when their shift starts.

    Let's ignore lunch for the moment (it's late in my day). Bob starts work at 8 PM and leaves work at 4 AM. While Bob has worked 8 hours in a row, and if we assume that Bob's employer has a workweek ending Sunday midnight, then legally Bob has worked 4 hours in one day and 4 hours in a different day. This is NOT the employer playing games but rather exactly the way CA state law says overtime is calculated. It works like dealing cards. The time accounting software basically deals each hour worked during the workweek into the correct daily bucket prior to daily overtime calculation.

    I understand that this is probably not the answer that you are looking for, but this is indeed exactly what the CA rules say. Now if the employer is not following this set of rules then the employer is breaking the law.
    CA overtime rules.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      How to find out what is the work week

      Ok, so I am very confused. My boyfriend just moved here from Puerto Rico. He does not speak english. The only job he has been able to get is working with a company that cleans floors for different offices. He starts work on a monday at 6pm-2am. same for Tuesday. Wednesday and Thursday they give him off. On friday he goes into work at 6pm til 2am. On Saturday morning he works at 6:00am til 2pm. and on Sunday 6:00am til 2pm.

      he gets paid 2x a month. When he does work over 40 hours over in one week, they denied him overtime saying that because he didn't work the week straight through that he was not entitled.
      Please inform me of the rules here.
      Also what are the requirements for lunch breaks? And does his schedule seem okay with the laws.

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      • #4
        duplicate post



        http://www.laborlawtalk.com/showthread.php?t=193374
        "Pluralitas non est ponenda sine neccesitate'' - Sir William of Ockham, a.k.a. Ockham's Razor

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        • #5
          A number of questions

          First off, what is your employer's defined work week? It must begin and end at specific times as DAW indicated. As an example, let's say it's from 12AM Monday to midnight the following Sunday. The workday would be 12AM to midnight on a daily basis. You start work at 8PM and work till midnight, clock out, that's 4 hours that day. You must be given a 10 minute rest period for that time. You clock in at 12:30 AM and work till 6 AM, that's 5 and a half hours. You are required to be provided with an uninterrupted 30 minute meal break for that shift along with a 10 minute rest period.
          From the California wage order that you would be covered under:

          Meal Periods
          (A) No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than
          30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and the employee.

          Now, you report back to work on the same workday at 8 PM and work 4 hours. Again, you are entitled to a 10 minute rest period for that time. Overall, you have worked 9 hours in that day provided your received your 30 minute meal break. If you were denied that meal break, you should receive and additional hours wage at your "regular rate". That is a whole different matter.

          Having done the same work as you for 14 years I can tell you that your employer is responsible for supplying all the hand tools required for the job unless you make double the current minimum wage. Currently that's $8.00 x 2. If, as I was, you are required to record you time and document your work using a PDA and then sync it at home after each days work, your travel time home and the time until the sync process is complete are counted as hours worked.

          That is a start for you. There are a number of places to obtain further information if you look for it.

          Comment


          • #6
            Worriedspouse, I thought the "tools" hourly rate requirement referred only to mechanics?
            I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

            Comment


            • #7
              Overtime Cal.

              Patty, it's a common misconception. That is part of section 9 of most, if not all Wage Orders in California. Not only tools but any uniform, including clothing with distinctive ( company name and or logo ) markings that must be worn on the job must be supplied and maintained by the employer.

              Comment


              • #8
                For those who are interested in the exact wording of the CA Wage Orders on this issue:

                http://www.dir.ca.gov/IWC/IWCArticle4.pdf

                TITLE 8. INDUSTRIAL RELATIONS
                DIVISION 1. DEPARTMENT OF INDUSTRIAL RELATIONS
                CHAPTER 5. INDUSTRIAL WELFARE COMMISSION
                GROUP 2. INDUSTRY AND OCCUPATION ORDERS
                ARTICLE 4. PROFESSIONAL, TECHNICAL, CLERICAL, MECHANICAL, AND SIMILAR
                OCCUPATIONS (WAGE ORDER 4-2001, EFFECTIVE 1-1-2001)

                Pertinent part of regulation is in Section (B) below:

                9. Uniforms and Equipment

                (A) When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term "uniform" includes wearing apparel and accessories of distinctive design or color.

                NOTE: This section shall not apply to protective apparel regulated by the Occupational Safety and Health Standards Board.

                (B) When tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and maintained by the employer, except that an employee whose wages are at least two (2) times the minimum wage provided herein may be required to provide and maintain hand tools and equipment customarily required by the trade or craft. This subsection (B) shall not apply to apprentices regularly indentured under the State Division of Apprenticeship Standards.


                -------

                From the CA-DLSE manual.

                45.5.8.1 Definition Of “Hand Tools And Equipment”. DLSE has opined that the term “hand tools and equipment” is to be given its literal meaning. Such hand held tools and hand held equipment do not include power driven tools or equipment. The IWC intended that the term be limited to hand held tools such as hammers or screw drivers. The word equipment is meant to encompass hand held measuring instruments or like apparatus. The IWC Statement As To The Basis of the 2000 Orders states: “This exception is quite narrow and is limited to hand (as opposed to power) tools and personal equipment, such as tool belts or tool boxes, that are needed by the employee to secure those hand tools.”
                "Reality is that which, when you stop believing in it, doesn't go away".
                Philip K. **** (1928-1982)

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                • #9
                  The following changes are being implemented to the xxxxx xxxx Home Improvement Services divisions effective immediately. Please read carefully as these changes will affect many associates and many practices currently in place.

                  These changes are necessary to get Home Improvement in line with the overall business practices of xxxxx xxxx. Thank you for your understanding and cooperation in implementing these changes.

                  The standard workday for the Home Improvement Projects division is from 8 pm to 7 am.

                  this came out this morning and states the workday is 8pm to 7am not till midnight. Im still not sure if an hour and a half a day is overtime or just regular time.

                  Edit: I edited out the drive time wording this email was 5 pages long and delt with many other issues company wide.
                  The only thing I wanted to show was the normal work day wording.
                  Last edited by low67vdubinnocal; 09-03-2008, 08:21 AM.

                  Comment


                  • #10
                    You are kind of mixing apples and oranges here.
                    - The federal overtime rules look at all hours worked in the workweek to determine what is and is not "hours past 40 in the workweek".
                    http://www.dol.gov/esa/whd/regs/compliance/whdfs23.pdf
                    - Instead of looking at all hours worked in the workweek as required by the FLSA law, you are instead looking at a specific type of hours worked (travel time) and trying to determine at travel hours only to determine overtime. Sorry. The rules do not work that way. First you look at the travel hours and see if they are legally hours worked (FLSA regulations 29 CFR 785.33 - 785.41. You then look at all hours worked (including travel time) to determine what the overtime calculation is.

                    ------

                    By the way, you are attaching your question to a basically unrelated thread. It is a lot easier for everyone to follow if you just put your own question in a thread by itself. [Perhaps the moderator can move this to it's own thread].
                    "Reality is that which, when you stop believing in it, doesn't go away".
                    Philip K. **** (1928-1982)

                    Comment


                    • #11
                      Apples and bananas

                      Once again, California differs from Federal. The main variable would be if the employee was traveling from his home to the worksite first, but could but that could still fall within the definition of an out of town assignment. From the DLSE manual:

                      46.2 Travel Time: If an employee is required to report to the employer’s business premises
                      before proceeding to an off-premises work site, all of the time from the moment of
                      reporting until the employee is released to proceed directly to his or her home is time
                      subject to the control of the employer, and constitutes hours worked. (O.L.
                      1994.02.16; Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575)
                      46.3 Extended Travel Time. The California rule requires wages to be paid for all hours
                      the employee is engaged in travel. The state law definition of “hours worked” does not
                      distinguish between hours worked during “normal” working hours or hours worked
                      outside “normal” working hours, nor does it distinguish between hours worked in
                      connection with an overnight out-of-town assignment or hours worked in connection
                      with a one-day out-of-town assignment. These distinctions, and the treatment of some
                      of this time as non-compensable, are purely creatures of the federal regulations, and are
                      inconsistent with state law. (O.L. 2002.02.21)

                      Comment


                      • #12
                        required is the key word in the citation..
                        Walter

                        www.Collectovertime.com

                        Disclaimer: The above correspondence does not constitute legal advice nor establish an attorney-client relationship. You should seek the advice of independent legal counsel before relying upon, acting upon or not acting upon any information contained in this correspondence.

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