I’ve now had the distinct pleasure of writing 33 columns for this magazine. And in that time, I can tell you, the greatest difficulty in writing is coming up with the “hook”—that edgy angle that lets me bring a bit of livelihood to the potentially droll topic of labor and employment law. Sex, drugs and violence aside (which make up the practice of this area of the law), writing to an audience about the law’s strictures can be difficult.1
It was in this pursuit that led me to this month’s column. In doing my typical diligent research,2 I discovered something that made me realize not only how under-informed most businesses are about employment law, but just how much information is so readily available to employees regarding their “rights.” And I’m not referring to government agencies and mandated postings.3 There’s a much more invidious force at play: websites. A Google search for employment law leads to advertisements such as “Got Fired? Get a Lawyer” and websites with such not-so-understated names as firedwithoutcause.com and canmybossdothat.com. All of which seek to lure the recently chagrined or unemployed with visions of dollar signs dancing in their heads.
These advertisements and websites made me think4: Has anyone registered howtoscrewyouremployeesoutofwages.com or whydontmillenialshaveaworkethic.com? Apparently no one has.5 Which has me thinking: Are employers really getting the information they need to lawfully get the most work out of their employees without paying more than they have to? Because—believe it or not—in California, there are a number of different means by which an employer can get work out of an employee in excess of eight hours a day or 40 hours a week without having to pay additional overtime. (What follows is not an exhaustive list—because, for instance, I’m not going to expend precious column inches on the “sheepherder” exemption.)
Agricultural employees. For those of you with truly agricultural operations, those employees who work in the fields can be exempted from the strictures of the 8/40 rules. These employers can avail themselves of the 10-hour per day/60-hour per week overtime requirements. The pitfall here is if any of those agricultural workers end up, for instance, working indoors helping with nonagricultural operations, because then the special overtime rules are lost for that workweek.
Exempt employees. For all the employers that mistakenly categorize an employee as “exempt” from overtime simply by virtue of the fact the employee is paid a salary, there are a number of employers who pay employees by the hour (resulting in a requirement of overtime payment) even though there may be an applicable overtime exemption. Employers with very few exempt employees should periodically review the duties of their employees to determine if, with payment of an appropriate salary,6 the employee could be exempt from overtime. Pretty routine exemptions include executive (true supervisors and managers), administrative, certain licensed professionals, commission-compensated inside sales personnel, outside sales and highly compensated computer professionals.
Make-up time. This facet of California law lets employees, who need to take time off for a personal obligation, make up that time on another day in the same workweek without payment of overtime. There are a few catches here, though.7 First, the request and authorization to work the makeup time must be in writing, with the approval occurring before the make-up time is worked. Second, employers may not solicit or encourage the use of make-up time; however, businesses can inform their employees of the right to use make-up time, and nothing prohibits employers from making available preprinted request forms for the employees’ use in requesting make-up time. Third, the amount of time made up on any given day cannot result in the employee working in excess of 11 hours on that day, although making up time taken off on one day over two different days is allowable.
Alternative workweek elections. The Labor Code and most wage orders8 let employers provide an alternative work schedule, under which employees can work in excess of eight hours per day without payment of overtime. The types of schedules an employer may propose include four 10-hour days, or a five-day workweek of nine hours for four days, and four hours on one day.9 Such a proposal can be implemented if approved by a majority of the workers in the voting “unit” in a secret ballot election that occurs during working hours.
To work, alternative work schedules have significant hurdles. These include a written proposal to members of a work unit and written disclosures regarding the effects of the work schedule on things like vacation, benefits, holiday pay and sick leave. The employer must hold information meetings at least 14 days in advance of the election and translate the written disclosures into another language if 5 percent or more of the workforce speak it as their primary language. In addition, the results of the election must be reported in writing to the Division of Labor Statistics Research within 30 days of the election. This device really provides the greatest ability for an employer to get the most from a workforce; however, any single misstep invalidates the election.
So, while these options may not stop entitlement-laden employees from clicking on canmybossdothat.com, hopefully, with careful planning, the answer they’ll receive is “yes they can.”
1 Unless you don’t mind being the cure for insomnia.
2 Most of the time, I do actually research the subject matter. Only a couple of times have I just made it up.
3 Don’t get me started on mandated postings! Businesses paying rent have to surrender nearly half a wall to inform employees of all the reasons they should consider suing their employer. What happened to “ignorance of the law is no excuse?”
4 A first by most accounts.
5 Clearly, it’s more in vogue to rail against employers than on behalf of them.
6 At least twice the minimum wage, on a salary basis.
7 Remember—it is California.
8 Wage Order 14 (agricultural) and Wage Order 15 (household) don’t allow for the use of alternative workweek elections.
9 There are many other options—these are just elementary examples.
