We wrote recently about "comp time" as an attractive but risky alternative to overtime for non-exempt employees. "Make-up" time falls into the same risky category. Employees often like to make up missed time instead of suffering a reduction in pay. From the employer’s perspective, this also makes sense, particularly when small increments of time are involved. For example, an employee may want to leave early for personal reasons, save any accrued vacation for later use, and instead make up the missed time. Although make-up time is permitted under the Labor Code, like comp time, its use is heavily circumscribed.
Labor Code section 513 allows private employers in California to permit employees to work make-up time under the following circumstances:
- the employee voluntarily requests make-up time in writing each time a make-up is desired;
- the employee is regularly scheduled to work 40 hours per week;
- the make-up time does not cause the employee to work more than 40 hours during the week in question or more than 11 hours in one day;
- the make-up time is worked in the same workweek as the personal time off for which it is making up; and,
- the employer does not encourage or otherwise solicit the employee to use make-up time.
Employers should also keep in mind that like comp time, make-up time is a concept relevant only to non-exempt employees. If an employer classifies an employee as exempt, but allows the employee to make-up time when the employee leaves early for personal reasons, the employer is behaving at odds with the employee’s exempt status. Remember, exempt employees are paid a full day for any work day in which they perform any work, with very limited exceptions.
In light of the practical difficulty experienced by most organizations in complying with rules regarding make-up time, we generally recommend that employers have a policy against make-up time or have a policy that permits it only when human resources has signed off. More often than not, supervisors adopt loose make-up time practices and place the employer at risk for Labor Code violations. Like comp time, if make-up time is permitted, the employer must carefully document compliance with each of the requirements.