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California Labor Lawyer Answers Overtime Question

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LawyersandSettlements recently interviewed John L., a hospital technician who works 80 hours every two weeks, but often six days in a row. John wants to know if he is entitled to overtime on the sixth day. California overtime lawyer Jose Garay responds.

"This seemingly complex problem may actually be very simple to answer with more information," says Jose Garay. "However, due to the highly technical nature of the issue, major caveats apply."

"Regardless if the work performed is in a hospital or elsewhere, the healthcare industry could subject employees to what's referred to as an alternative workweek. This legal modification of the traditional 8/40 workweek is very important. The legislature revised the standard when it enacted Labor Code section 517. I recommend that affected employees also read the Division of Labor Standards Enforcement (DLSE) operations manual and opinion letters 2002 - 05 - 22 and 2002 01 - 21." (Here is one link and another link.)

Pursuant to the California Wage Orders the DLSE (what most people refer to as the "labor board" or "labor commission"), and California case law, the scenario described by John L. is plausible but it's legality is uncertain without knowing more facts. Changes to the traditional workweek must meet strict conditions and they affect both the employer and employees.

California has traditionally been an 8/40 state: this means that if you work more than 8 hours in a workday (defined as 24 consecutive hours) or 40 in a workweek (defined as 168 consecutive hours, or 24 x 7) then you are owed overtime if you work more than 8 in a day or 40 in a workweek. This means that you could work less than 40 hours in a workweek and still be owed overtime because you could have worked a 10 hour day (thus, you would be owed 2 hours of OT—even if you worked only 30 hours in the workweek.

This is NOT the case under federal law and many other states. For a better understanding of the alternative workweek you may want to review the relevant section of the DLSE operations manual and opinion letters (it can be downloaded as a .zip file). You want to look at the sections that discuss fundamental legal concepts such of hours worked, workday, workweek, and overtime (and, as always, more legal precepts apply, but we'll ignore those for now). It's also helpful to review the legislative history which carved out an exception to the traditional 8/40 standard.

Having said the above, and based on [the hospital bio-lab technician]John's stated facts, I am not surprised at the change to the schedule. I would want to know if an election procedure was held and what whether any attempt was made to accommodate employees (It has been a while since I reviewed the current law on these issue, but I am willing to follow up in a couple of weeks—I don't want to steer the reader in the wrong direction).

Before an employer can switch to an alternative workweek, he must jump through a series of hurdles. The provisions for an alternative workweek reflect the historical reality of working conditions in a hospital (and other industries), which frequently require staff to remain on the job, for medical and business reasons, longer than 8 hours in a traditional workday. In other words, dying patients cannot be abandoned simply because the clock strikes 5 pm.

The law is not that insensitive or cold, however, to employees. The facts are insufficient to determine whether this hospital - the employer-- is in compliance with the law. Furthermore, this is a very esoteric legal niche in labor law. A lot of the technical requirements are needed to be satisfied before an employer can implement an alternative workweek schedule. Some of them are not obvious from the law.

Often times, hospitals satisfy the legal requirements to alter a workweek for one department and unilaterally bootstrap other departments with the same working conditions--under the assumption that because one segment of the workforce obtained the approval of the division labor standards enforcement (DLSE) to effect change, other departments similarly qualify. But they forget the most important element--the DLSE approves an alternative workweek schedule only on a case-by-case basis AND by evaluating individual segments of the workforce.

Sorry for the long-winded response, but this is a very technical area. Furthermore, many other statutes and California precedent must be considered. For example, if the employer switched to a 10/40 workweek or even a 14/80 workweek, then how it was accomplished must be examined. Also, the law is contradictory when it comes to the one day of rest and seven day workweek.

I need a lot more information to provide a more intelligent response. For example, I need to know the duties performed, the workforce affected, the circumstances in which the working conditions were changed, and more. The scope of this response must be limited due to the potentially very fact-specific elements that could dramatically change my response. For example, exemption issues may apply or it is entirely possible that the hospital (incorrectly) relied on another source of law. I will state a well-known fact—employers who rely on the alternative workweek laws, usually get it wrong. In fact one expert stated that he had not yet seen an alternative workweek procedure that satisfied the legal requirements.

I do not want to discourage anybody, but I must point out that more information is needed and I believe John should pursue this matter further. As a famous playwright once said, something smells rotten in the state of Denmark...

LawyersandSettlements thanks Jose Garay and we will ask John L. to provide the necessary information to help in his potential overtime claim. Mr. Garay would be happy to provide anyone with a more in-depth response if requested.

Contact Jose Garay:
Phone: 949-260-9193



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