“You Can’t Always Get What You Want”
Here at Sierra HR Partners, our Consultants are frequently asked about creative scheduling requests from employees that on the surface, may appear to benefit both the employer and the employee. For example, an employee may wish to do extra work over the weekend with those hours added to a vacation bank rather than included in the normal paycheck. Or, an employee may request to work four 10-hour shifts and forego overtime so she can have three-day weekends*. These deviations from California wage and hour law may seem innocent, particularly because they are often at the request of a well-meaning employee. No harm, no foul… right?
[We work in California, so you’re probably guessing the answer to that question already!]
The Court reasoned that if exceptions to wage and hour law were allowed for employees who were willing to work “voluntarily,” employers might be able to coerce them to testify that the arrangement was acceptable and waive their legal protections. This could have a negative impact on competing businesses who were trying to abide by state and federal regulations.
This means that an employee’s seemingly generous offer to complete a project “off the clock” could result in significant penalties for the business in the future. If the employee happens to be terminated or otherwise becomes disenchanted with the employer, a legal claim for unpaid wages could not be defended by showing that it was voluntary. Even the employee’s signed request would not remove an employer’s legal obligations to abide by state and federal wage and hour rules.
Any earned wages that are not paid to the employee at the time of termination could result in penalties of one day’s wages for each day payment is not made, up to a maximum of 30 days. This is in addition to any actual payment that may be owed for regular or overtime hours.
The Department of Industrial Relations puts it this way: “Assessment of the waiting time penalty does not require that the employer intended the action or anything blameworthy, but rather that the employer knows what he is doing, that the action occurred and is within the employer’s control, and that the employer fails to perform a required act.”
Remember that you are free to change work schedules and duties for your employees as appropriate for your business. Extra hours to complete a project, or a schedule that exceeds eight hours in a workday is perfectly acceptable… so long as you always pay in accordance with the law.
*This type of schedule is permissible only by following specific steps to establish a valid Alternative Workweek Schedule and filing the information with the Department of Industrial Relations.