In California, make-up time is additional time spent on the job to make up for a brief absence from work earlier in the work week. A request for make-up time must be made in writing. Make-up time does not count toward your overtime hours in most circumstances. Your employer cannot encourage you to work make-up time.
What are some examples of makeup time?
Make-up time is any time that you spend at work in order to make up for an earlier absence.
For example: Loretta leaves work 1 hour early on Tuesday in order to pick up her child from school. On Friday she is scheduled to work from 8am to 5pm. However, Loretta asks her boss if she can work until 6pm instead to make up for the missed time on Tuesday and her boss agrees.
Makeup time serves several purposes. It:
- gives workers some flexibility with their schedule without forcing them to lose work hours or pay,
- ensures that all of the job duties get done in a given week, and
- helps workers react to emergencies and other unforeseen circumstances without relying on other forms of paid time off (PTO), like sick leave or vacation time.
California labor laws explicitly allow for make-up time.1 However, some employers require advance notice before allowing you to use makeup time.
How can I get the make-up time?
In California, you have to request make-up time in writing. That writing has to be signed. A new written request has to be made for each occasion that you work make-up time.2
Importantly, you have to request make-up time. Your employer cannot encourage you to use the make-up time to cover lost working hours. The decision to request make-up time must be your own.3 This is to prevent employers from pressuring their workers into performing the additional work.
Does it count toward my overtime calculation?
Working make-up time does not count towards your overtime calculation, so long as certain rules are followed.
Under California employment law and the federal Fair Labor Standards Act (FLSA), you are entitled to overtime pay if you are a non-exempt employee and you work over:
- 8 hours in a single work day,
- 40 hours in a single work week, or
- 6 consecutive days in a work week.4
Hours worked in excess of these limits are paid 1.5 times your regular rate of pay.
Generally, the make-up time that you spend at work merely replaces the hours that you missed. These do not add any work time to your overtime calculation.
However, there are exceptions. If any of the following occurs, then you are entitled to overtime pay for your makeup time:
- the make-up time causes you to work more than 40 hours in a work week,
- it causes you to work more than 11 hours in a day, or
- the make-up time is worked in a different work week.5
If any of these exceptions are the case, you are entitled to overtime pay for the number of hours you spend at work in make-up time.
For example: Loretta missed an hour of work on Tuesday to pick up her child from school. She and her boss arrange for Loretta to work an hour of make up time next Thursday. Typically, Loretta works 40 hours in a week. Under this arrangement, however, she would be working 39 hours in the first week, but then 41 in the next. Loretta would be entitled to overtime pay for her hour of make up time in the second week.
Additionally, if your employer cannot prove that the working hours were make-up time, they may be liable for overtime payments.
For example: Loretta and her boss orally agree to her working make up time the following day so she can meet a personal obligation. This leads to Loretta working 7 hours one day, but 9 hours the next to make up for the lost time. Loretta’s employer may be liable for 1 hour of overtime pay because there is no request form proving that the arrangement was compensatory time.
If your employer is not satisfying its overtime requirements, you can file a lawsuit under California’s wage and hour law.
Can exempt employees work make-up time?
No, makeup time is only something that non-exempt employees can use.
Exempt employees are exempted from many of the legal protections under California’s labor laws, including:
Exempt workers are paid for a full day on each work day that they perform their job.
How is this different from comp time?
Make-up time is different from comp time in California.
Make-up time lets you work an equal amount of time to cover up for an earlier absence. That makeup time is generally paid at your regular rate of pay.
Comp time lets you work extra hours in one work week in exchange for time off in a later week. Under California law, it is only available if you would work 40 or more hours in the work week. The time off that you receive has to be provided at your overtime rate.6
For example: Loretta agrees to work 4 extra hours on Saturday. In exchange, she gets 6 hours of comp time (4 hours x 1.5) off from work.
Comp time is also different from make-up time in that it must be permitted in your written employment contract.7 If your employment contract does not provide for it, comp time is not available to you.
However, like make-up time, you must request, in writing, to be paid in comp time rather than with a payment of overtime wages.8
- California Labor Code section 513 LAB.
- California Labor Code 510 LAB.
- California Labor Code 513 LAB.
- California Labor Code 204.3 LAB.
- California Labor Code 204.3(b)(1) LAB.
- California Labor Code 204.3(b)(3) LAB.