Q: I WORK as an hourly employee for a private business. There are days when I work more than 8 hours per day. However, instead of paying me overtime, my employer gives me comp time for the hours I worked. What are my rights regarding this employment practice?
A:California law allows non-exempt employees to receive, in lieu of overtime pay, compensating time off (also known as CTO or comp time) at a rate of not less than one and one-half hours for each hour of work for which overtime pay is required by law. If the overtime work needs to be paid at twice the employee’s regular rate (i.e., double time), then the employee may receive comp time commensurate with the higher rate.
An employer may provide comp time if the following four conditions are met:
(1) The comp time is provided through a collective bargaining agreement, memorandum of understanding, or other written agreement between the employer and the employee before the performance of the work.
(2) The employee has not accrued comp time of more than 240 hours. Any employee who has accrued 240 hours of comp time shall, for any additional overtime hours of work, be paid overtime compensation.
(3) The employee has requested, in writing, compensating time off in lieu of overtime compensation.
(4) The employee is regularly scheduled to work no less than 40 hours in a workweek.
Other important provisions of the comp time law are as follows:
(a) If compensation is paid to an employee for accrued comp time, it must be paid at the employee’s current regular rate.
(b) An employee should be paid for all unused comp time if the employee is terminated. The pay must either be 1) not be less than the average regular rate received by the employee during the last three years of the employee’s employment, or 2) the final regular rate received by the employee, whichever is higher.
(c) The employee must be permitted to use any accrued comp time within a reasonable period after making the request, if the use of the comp time does not unduly disrupt the employer’s operations.
(d) If the employee requests the employer to pay overtime hours worked in money instead of comp time for any comp time accrued for at least two pay periods, the employer must comply.
(e) Employers must keep records that accurately reflect comp time earned and used.
Many employees receive comp time as extra compensation for having worked overtime. Even though California law allows this practice for certain non-exempt employees, how the comp time is computed and provided may raise some serious issues. For example, employees who worked 12 hours in one day (that is, 4 hours extra) may only be provided 4 hours of comp time, when in fact, they have accrued 6 hours. If this is the case, the employer may be in violation of California’s comp time law and the employee may be entitled to additional wages.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayas law.com or contact his office by telephone at (818) 291-0088.