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7th day and the "8 and 80" system California

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  • 7th day and the "8 and 80" system California

    Hi, I work as the payroll administrator for a hospital and we are on the "8 and 80" system where hours over 8 in a shift and over 80 in a biweekly pay period are considered overtime.

    I was wondering how the "7th consecutive worked day" rule applies on top of this? Do we still define the workweek as 7 consecutive 24hr periods, making us have 2 workweeks in our pay period? (This gives us a possible 2 days out of the pay period where the 7th day rule might apply)

    Thanks for your help

  • #2
    I hate California law, but I am responding to keep it near the top.

    Megan or someone else can tell you if the 8/80 is allowed in Calfornia.
    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.

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    • #3
      Originally posted by ScottB View Post
      but I am responding to keep it near the top.
      Good thing, too. Probably no one has responded yet because, well, it's California, and it's a question I hadn't seen posted here yet. You can always call the DLSE and ask if one of our true California experts doesn't happen by.
      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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      • #4
        Is there specific provision in Ca labor code for '8 and 80'?

        I know of the overtime rule for working:

        - over 8 hours per day (1.5 x base)
        - over 40 hours within workweek (1.5 x base)
        - over 12 hours per day (2.0 x base)
        - 7th day within a workweek (1.5 x base, first 8 hours; 2.0 x base, hours past 8)

        I have not heard of an '8 and 80' schedule.

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        • #5
          An "8 X 80" schedule is an exception in federal law for hospitals, nursing homes and similar only. See Wage Order #4 which you can link to here:
          http://www.dir.ca.gov/Iwc/WageOrderIndustries.htm
          I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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          • #6
            Thanks for the info.

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            • #7
              So, Megan and Barry have not surfaced yet to state if the 8/80 il legal in California and what implications the seventh day rule has on it?
              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


              • #8
                ScottB: California does allow hospitals to use the 8/80 system. That having been said, the application of how hospitals are implementing their 8/80 payroll systems is the center of class action litigation throughout the state. A number of prominent California hospitals have adopted 8/80 systems - uniformally implementing them in such a way that, for all intents and purposes, employees NEVER receive overtime premium pay regardless of how many hours they work in a day (e.g., 10, 11, 12, or more) -- allegedly that is.

                My firm has been involved in the seminal case on the matter, Irene Mutuc v. Huntington Mmeorial Hospital (Pasadena), in which I am serving as an expert witness for the hospital workers. This case has been in litigation for over 5 years, including a recent trip up to the California Court of Appeal. In 2005 the Court of Appeal remanded the case back to the trial court for further proceedings. Dozens of court appearances and depositions later, the case is set to go to trial in early 2007. Labor law professionals will find the issues fascinating (although I suspect not worthy of 5 years of litigation, and counting) http://caselaw.lp.findlaw.com/data2/...es/b180814.pdf
                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
                  So, the answer is, we don't know yet?

                  My gut feeling, if I were the employer, would be to assume the 7th day overtime rules were in effect, unless I could find something that specifically overrode it.
                  Again, all I could find was this IWC (the link is fixed now). It states certain pay structures that would meet the overtime requirement; and it mentions daily overtime, but it doesn't mention the 7th consecutive work day issue specifically, one way or the other.
                  http://www.dir.ca.gov/IWC/IWCArticle4.pdf
                  I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                  • #10
                    Pattymd: First, hospitals are governed by the provisions of Wage Order 5 (industry Wage Order) http://www.dir.ca.gov/IWC/IWCArticle5.pdf - not Wage Order 4 (Occupational Wage Order) as you posted.

                    The General Overtime Pay provisions of Wage Order 5, Section 3, Part A, Items 1(a) and 1(b) provides for overtime premium pay when an employee works 7 days in a row. However, note the language of Wage Order 5, Section 3, Part D: "No employer engaged in the operation of a hospital.... shall be in violation of any provision of this section... if pursuant to an agreement or understanding arrived at between the employer and employee before performance of work, a work period of 14 consecutive days is accepted in lieu of the workweek of seven (7) consecutive days for purposes of overtime computation and if, for any employment in excess of 80 hours in such 14 day period, the employee receives compensation at a rate not less than one and one-half (1 ) times the regular rate at which the employee is employed.
                    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.

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                    • #11


                      So the answer to the OP's question is that the double time provision that would kick in for other jobs does not happen with the 8/80 system?

                      (note to self -- never, ever have employees in California)
                      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


                      • #12
                        Originally posted by ScottB View Post


                        So the answer to the OP's question is that the double time provision that would kick in for other jobs does not happen with the 8/80 system?

                        (note to self -- never, ever have employees in California)
                        Or, at least, never work in the medical services field or offer an alternative workweek.
                        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                        • #13
                          Nope, it is California, with all the different rules passed, not by the Legislature, but by a bureaucracy. I cannot imagine how temp agencies function given the myriad of different things that could happen, depending upon the job. Cap of 32 hours of overtime in a workweek, but not for manufacturing (which is where, I would think, the cap would be in place, as opposed to protecting some front desk receptionist who probably does not get called in for much, if any overtime!).

                          Barry is certainly opening my eyes.

                          I had intended to hold a quick seminar at our next staffing association meeting called "And you think we have it bad..." but the meeting is tomorrow and my procrastination mode has kicked into overdrive. (actually, home now with my granddaughter who is staying with us for the week).
                          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


                          • #14
                            ScottB: So the answer to the OP's question is that the double time provision that would kick in for other jobs does not happen with the 8/80 system?

                            Scott, If you read Section D of the Wage Order, you will note that it is silent on what overtime premiums must be paid on a daily overtime basis - only that hospitals can substitute an 80 hour bi-weekly period for the general 40 hour period. Daily overtime (e.g., time-and-a-half after 8 hours of work and double-time after 12 hours of work) is still applicable. These employee rights are provided by statute - Labor Code 510. The DLSE does a good job of explaining this seeming disconnect in its Enforcement Manual - Item 50.4.2 http://www.dir.ca.gov/dlse/DLSEManua...enfcmanual.pdf

                            To the OP: From everything posted in this thread, I hope you realize the importance of having a qualified, labor lawyer review the details of your8/80 system for compliance with the law. There are a lot of traps for the unwary.
                            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.

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                            • #15
                              ScottB: note to self -- never, ever have employees in California.

                              I really do you enjoy your quips. All kidding aside however, my take on the matter: Blinded by the pursuit of the almight buck, many employers will do everything they can to squeeze their employees if left to their own accord. This is certainly evidenced in some industries (e.g., garment industry) more than others. In an effort to ensure all California employees are afforded basic liberty protections (e.g., the right to take a 30-minute lunch or get their final paycheck when they are terminated from employment -- two topics of so many posts on this board), our government has to legislate them. I think it is really a sad commentary.
                              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.

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