As part of our continuing Advisory series on wage and hour issues, this week’s Advisory focuses on establishing a workday and workweek for overtime calculations. Employers generally know that most non-exempt employees must receive overtime pay for all hours worked over 8 hours in a workday and over 40 hours in a workweek. What many employers do not know, however, is that they have the right to establish what constitutes a “workday” and “workweek” to be used for calculating daily and weekly overtime. Establishing clear “workdays” and “workweeks” not only helps employers to manage their overtime pay expenditures, but it also helps them to calculate overtime pay accurately.
Under California law, a “workday” is defined as any consecutive 24-hour period beginning at the same time each calendar day. The workday may begin at any time of the day. It need not coincide with the calendar day or the actual time an employee begins to work. If an employer does not properly establish its workday, the California Division of Labor Standards Enforcement (DLSE) generally assumes that the workday is midnight to midnight.
A “workweek” is defined under California law as any 7 consecutive days, starting with the same calendar day each week. It is a fixed and regularly recurring period of 168 hours, or 7 consecutive 24-hour periods. The workweek need not coincide with the calendar week and may begin on any day and at any hour. If an employer does not properly establish its workweek, the DLSE generally assumes that the workweek coincides with the week of Sunday through Saturday.
The same workday and workweek can be established for an entire employee population or a different workday and workweek can be established for different groups of employees. Once the workday and workweek is established, however, they must remain fixed regardless of the employees’ work schedules. They may be changed only if the change is intended to be permanent and there is a legitimate business reason for doing so that is not designed to evade state or federal overtime pay requirements.
What Should Employers Do Now?
- Determine whether establishing a different workday and/or workweek is advantageous – Employers can review the work schedules and overtime pay expenditures for their employees to determine whether a workday different than midnight to midnight and/or whether a workweek different than Sunday through Saturday better suits their business needs. Remember that the workday and/or workweek can be defined the same for all employees or defined differently for separate groups of employees.
- Document the workday and workweek adopted for employees – Regardless of how employers define the workday and workweek, employers should document the workday and workweek adopted to help ensure that overtime pay is accurately calculated and so that employees understand the basis on which overtime is calculated. This can be done by including it in an employee handbook or in a stand-alone written policy.
Establishing a workday and workweek is one of the most basic tasks for wage and hour compliance, yet employers often fail to devote attention to it. If you have questions about your company’s workday or workweek or any other issue about employment law, please contact one of our attorneys:
Daniel F. Pyne III
Karen Reinhold
Ernest M. Malaspina
Richard M. Noack
Shirley Jackson