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  • need help understanding this California

    okay, so my current company just decided to change from a commission type payroll to an hourly now. this was good news for me since now i will make more then i normally did. But what concerns me is what they presented as a terms of logging down our hours worked. I have had a job overnight before that was hourly and i was paid for all hours worked from the day i started til that shift ended, even if the shift ended on the day that was the beginning of the new payroll period. payroll is from friday-thursday paid bi-weekly. I was informed that if I start thursday at 8pm i am only getting paid up to 12:00am for that payroll period and any hours worked during friday will be paid on the following payroll period.

    My question is: if I work from 8pm-8am is there still overtime from the 4am-8am even tho the payroll will see thursday as 4 hours and friday as 8 hours.

    If you can send me any link that i can read and hopefully understand to assist my situation, I would be very happy.

  • #2
    Employers are required to define their workweek which is any consecutive period of 168 hours and their workday as a period of 24 consecutive hours. Many employers have to break sometime during a shift/workday especially if they work 24/7 and have different shifts. If they are switching payweeks, they must calculate overtime using both the prior workweek and then the new workweek and give you the one that is most advantageous to you.

    CA defines a "workday" as follows: A workday is a consecutive 24-hour period beginning at the same time each calendar day, but it may begin at any time of day. The beginning of an employee’s workday need not coincide with the beginning of that employee’s shift, and an employer may establish different workdays for different shifts. However, once a workday is established it may be changed only if the change is intended to be permanent and the change is not designed to evade overtime obligations. Daily overtime is due based on the hours worked in any given workday; and the averaging of hours over two or more workdays is not allowed.

    As long as they stay consistent going forward on their defined workday/workweek, then no they wouldn't owe you daily OT for that shift. It is possible you will still be getting weekly OT depending on how much you work on other days. If they are changing your workday/workweek frequently to avoid paying OT, then there is an issue.

    Here is the link I got it from :
    http://www.dir.ca.gov/dlse/faq_overtime.htm

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    • #3
      okay then next question:

      there is nothing protecting me from working 4pm-8am (330pm-830am if u wanted to add lunch time to be more correct) if the workday ends/begins at midnight.

      i work as a service laborer, steam carpets, strip/wax floors, etc..

      im just wondering if this is there way to make us work 10+ hours without overtime. they went 5 years without paying any1 overtime because the workers were told they didnt get overtime til after 40 hours per week. so some employees were working 12-16 hour days and then just given a 3-4 hour day next to make sure they didnt go over 40 hours. once i started working i asked about the overtime and found it in their handbook that they have been paying it wrong. I just want to be sure this if fair when all of our work is normally from 1pm-6am depending on the job site location.
      Last edited by natechris; 07-12-2014, 10:48 AM.

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      • #4
        I do not like using the word "fair" in a labor law context, because the word means different things to different people. Nothing you have said so far sounds illegal, which is the standard written in labor law. It is perfectly legal for the employer to schedule time in such a way as to avoid incurring overtime as long as overtime is paid when occurred. My last 4 (CA) employers all had a workweek ending Sunday midnight even though none of them had shifts or schedules ending then. Any time we had employees working past midnight, they raised the same issues you did, and the answer was the same as you just got.
        "Reality is that which, when you stop believing in it, doesn't go away".
        Philip K. **** (1928-1982)

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        • #5
          im not so worried about the end period of the payroll as much as I am curious if I work 12 continuous hours on a job site (ex: 4pm-4am) are the last 4 hours considered overtime pay regardless of which payroll period it gets paid on?

          I wont mind if I only get paid for the standard 8 hours on 1st payroll check and get the other 4 hours on the next payroll check, I want to know if those 4 hours will be paid as overtime?

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          • #6
            See the link & other info in post #2 above. It tells you the OT rules plus the link gives links to a workday & workweek & what they are.

            Re your post above, you would not get paid daily OT if they are different workdays. (example 8 hrs. one workday & 4 in another workday) It has to be over 8 hrs. in the workday. You get paid OT for the workweek if you work over 40 hrs. in the workweek so depending on how much time you worked the other workdays you could get workweek OT.

            http://www.dir.ca.gov/dlse/faq_overtime.htm ( Here is the link again. )

            workday
            “Workday” is defined in the Industrial Welfare Commission Orders and Labor Code § 500 for the purpose of determining when daily overtime is due. A workday is a consecutive 24-hour period beginning at the same time each calendar day, but it may begin at any time of day. The beginning of an employee’s workday need not coincide with the beginning of that employee’s shift, and an employer may establish different workdays for different shifts. However, once a workday is established it may be changed only if the change is intended to be permanent and the change is not designed to evade overtime obligations. Daily overtime is due based on the hours worked in any given workday; and the averaging of hours over two or more workdays is not allowed.



            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.
            Last edited by Betty3; 07-13-2014, 07:55 AM. Reason: add info
            Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

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            • #7
              yes i read the link that was posted but it did not clearly explain my question the way i wanted it to be explained. which would have been easier to just say 'no' i can work 8 hours and then another 8 hours without clocking out and get no overtime unless i go over 40 hours in a week. to think that now i can be forced to work two 16 hours nights with no break in between and not get paid overtime is just wrong.
              Now i see why i was told i can not take a lunch break when working from 8pm-4am. Just kind of displeasing that i have to work 8 straight hours with barely a break and i can not complain about it.
              Last edited by natechris; 07-15-2014, 02:18 AM.

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              • #8
                CA is a bit odd in that it has a rule for daily overtime ...and 40 hrs is only 1/2 the story. You sort of need to lay out your work times in relation to when the employer states it's day begging..the employer is free to define when it's day begins. Let's say it's at midnight ...then two back to back 8 hr shifts PM in day 1 and AM in day 2 would NOT count as daily OT, BUT if day begins at 8 AM then they would, the second 8 hrs becomes OT.

                Lay your shift assignments out on paper.....

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                • #9
                  Breaks are a whole separate matter. http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm
                  I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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                  • #10
                    well im trying to figure out why things are happening the way they are. The work week used to be from friday-thursday, we used to start thursday night and end friday morning but still get paid as a thursday shift.
                    our normal start time for work varies on distance needed to be traveled, early times of 1pm to the most common of 8pm. our end time varies as well on the distance back or the condition of the service requested, which is normally 2am-8am.
                    the supervisor used to schedule 2-3 jobs per night and at times would take about 8-12 hours each night. The company wasnt paying overtime for many years til I asked about why i dont receive it and what i was told didnt match their info from handbook. now with the workday ending during the middle of each work night it just removes the possibility of overtime pay but they can work us a bit more now.

                    From ready the link that was provided it states:...except that if the total work period per day of the employee is no more than six hours...
                    so technically when i start work at 8pm i only work for 4 hours for that day and then another 4 hours for the next day. which seems there is nothing stopping them from making my start time 6pm, and working me til 6am with no lunch since its technically only 6 hours per workday each.

                    Another quick question:
                    when the link stated, 'Unless the employee is relieved of all duty during his or her thirty minute meal period, the meal period shall be considered an "on duty" meal period that is counted as hours worked which must be compensated at the employee's regular rate of pay', i want this to be elaborated a bit more detailed. Lets say i am sent on a solo job, but the schedule said it was a 2-man job. when we have 2+techs, lunches are nice because we get a warm meal. But when its a solo i cant leave the job site or the equipment. when i cant walk across the street to grab some burgers from mcdonalds does that count as not being relieved of ALL duty?

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                    • #11
                      If your employer picks the start of day as say midnight so as to best fit his needs ..that not illegal..but if in CA you then work say 6 hrs in AM and another 6 the immediate PM you just triggered. 4 of OT! Lay it out .

                      In general if you must stay in direct area you are entitled to be paid...but avoid picking small wars ...no rule against a brown bag and sitting 40' away for 30 minutes?

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                      • #12
                        yes thats easy to say if u work in the morning 1st, but use the same answer when u start in PM before AM. we do not have a scheduled "end time" its just a start time. there is no "you work from 6pm-6am on wednesday..." its just "you start at 6pm wednesday..."

                        also when u state this, if i bring a 'brown bag for lunch and sit 40' away is that considered relieved of all duties or work time?

                        In general if you must stay in direct area you are entitled to be paid...but avoid picking small wars ...no rule against a brown bag and sitting 40' away for 30 minutes?
                        Last edited by natechris; 07-15-2014, 02:03 PM.

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                        • #13
                          Originally posted by natechris View Post
                          Another quick question:
                          when the link stated, 'Unless the employee is relieved of all duty during his or her thirty minute meal period, the meal period shall be considered an "on duty" meal period that is counted as hours worked which must be compensated at the employee's regular rate of pay', i want this to be elaborated a bit more detailed. Lets say i am sent on a solo job, but the schedule said it was a 2-man job. when we have 2+techs, lunches are nice because we get a warm meal. But when its a solo i cant leave the job site or the equipment. when i cant walk across the street to grab some burgers from mcdonalds does that count as not being relieved of ALL duty?
                          Since this is a CA specific question, there is a CA specific rule applicable. In most states we would be more interested in the federal FLSA rule, which does not care about restricting the employee's movements during lunch.

                          http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm

                          If the employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid. This is true even where the employee is relieved of all work duties during the meal period. Bono Enterprises, In. v. Bradshaw (1995) 32 Cal.App.4th 968.
                          "Reality is that which, when you stop believing in it, doesn't go away".
                          Philip K. **** (1928-1982)

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                          • #14
                            Then lay it out on paper after the fact and keep good solid records in some safe place of your times and lunch periods......you can bank your issues for a bit of time .

                            What's missing in your points seems to be when your employer says your day starts...let's change it and say your day starts at 6 pm .....well under CA rules your first 8 hours say to 2am is straight time, if you keep working until 6 am that's 4 hours OT and if that evening you start at 5 pm that 1 more hour added to day 1 OT.

                            if you work a lot of OT 6-7!days a week, one thing to watch is you cannot double dip for the same hours..if time counts as OT in that day you cannot add that to weekly tally to past 40 hrs

                            Comment


                            • #15
                              well i posted it in my second post or 3rd overall post about if the start/end was midnight. Assuming they can have some1 work 8 hours before the day ends and continue another 8 hours when the day starts for a total of 16 continuous work hours no overtime.

                              Assuming the day starts/end at 6pm, then i am starting at 2pm on average. regardless of what time is chosen for the end/start of the workday, apply that i start 4 hours before it ends and continue working 4+ hours to the next day.

                              now please, i already understand how the daily OT works if i work more then 8 hours in a WORKDAY, what I am trying to find out was: is there any protection i can use to prevent the company from working me 12-16 hour shifts without overtime? we do not have the 4 days at 10 hours day or the 3 days of 12 hours day rule like some places. i understand how that works too. this company is a 8+ daily/40+weekly overtime obligation.

                              the company changed their payroll this way because they were making us work 10-16 hours a night before they were caught with the unpaid overtime, the only thing that has changed is the fact that now we can do the same hours but not get overtime due to when they picked the end/start.

                              this is a very physical job working with power equipment and working for more then 8 hours is very tiring, we already have one employee out on workmans comp for shoulder injuries due to the caliber of stress to your arms.

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