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socrateaser
socrateaser, Lawyer
Category: California Employment Law
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Experience:  Retired (mostly)
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I am an hourly employee in California with scheduled regular

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I am an hourly employee in California with scheduled regular 40 hour work week. We typically work overtime on Saturdays. This week my company is having an offsite function for four hours. They stipulated that I must attend to get paid the 4 hours. If not I have to use my Vac time. We were also told that if we work on Sat that we will be paid 4 hours regular time and then anything over 4 hours would be considered overtime. Their justification is that we did not complete 40 hours worked. Is this correct?
Submitted: 3 years ago.
Category: California Employment Law
Expert:  socrateaser replied 3 years ago.
Hi,

Please clarify:

1. What is your basic job description. Different types of work have different associated laws in California.

2. Please provide your schedule for the proposed workweek, so that I know exactly how many hours you will work on each day. Example:

Mon: 8 hours
Tue: 8 hours
Wed: 8 hours
Thu: 8 hours
Fri: 4 hours
Sat: 4 hours.

Thanks.
Customer: replied 3 years ago.
I am an assembler in manufacturing. My wages are based on a 40 hour work week. My question is if the attendance is made mandatory (or we have to use our PTO if not attending) is that still considered hours worked for that work week.
Monday: 8
Tues: 8
Weds: 8
Thurs: 8
Fri: 4 worked hours with 4 paid for attending company function.
Sat: 6 hours
Expert:  socrateaser replied 3 years ago.
If what you mean is that the employer is reducing your regular work schedule by 4 hours on Friday in order to provide an "incentive" to attend training on Saturday, then that may be illegal.

Under federal regulations, time spent attending lectures, training programs or meetings must be paid unless all of the following are true (29 CFR § 785.27):

  1. attendance is outside regular working hours;
  2. attendance is voluntary;
  3. the session covers material not directly related to the employee's job; and
  4. the employee does not perform any productive work during the session.

The allegation that the employer is docking your regular hours in order to coerce your attendence at training, shows that the attendance is not really voluntary, and that the attendance is not really outside of regular working hours. I can't address factor #3, because I don't know what the training is about, nor can I address factor #4, because I don't know what sort of work the employer may require during the training.

Regardless, the employer is liable for your hourly wage if any of the factors weigh in your favor, and clearly at least two factors do. Therefore, in my view, you are entitled to be paid for the training, and the employer cannot simply reduce your normal work schedule as a means of avoiding liability.

To file a wage claim with the DLSE, see this link. Alternatively, to hire an employment rights attorney (if you want to try a group/class action for all of the affected employees), then for a referral, see this link.

Hope this helps.

NOTICE: My goal here is to educate others about the law. I am always available to answer your follow-up questions after you click Accept – however, if you do not click Accept, the website gets paid, and I receive nothing. This is true, even if you are on a subscription plan. So please click Accept, so that I will be able to continue to provide this service for others in the future.


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Customer: replied 3 years ago.
The function is not work related. It is a company picnic scheduled during normal working hours. 12-4 pm on Friday. If you attend the company will pay for that time, if you don't attend then you must use your vacation time. It is not mandatory to work overtime on Sats. but I was told by HR that if I do work Sat it will be straight time to make up for the 4 "COMP" hours not calculated as hours worked during the week. Which puts me back the question. Can the employer consider time paid for attending a company function as non-worked hours?
Expert:  socrateaser replied 3 years ago.
If the picnic is during regular work hours, and the employer permits an employee to avoid that work period, then the employee can decide to not work (attend the picnic), and those hours would not apply to the employee's workweek, becacuse the employee is voluntarily agreeing to take four hours off, rather than work.

If the employee attends the picnic and is compensated, then the employer is paying for the employee's attendance during work time, and those are compensible hours.

The employer could argue that the payment is a "gift," rather than wages, but unless the employee can continue working during that four hours, rather than attend the picnic, then the wages are not really a gift at all, because the alternative is to attend the picnic or not work and not get paid, which means that the picnic is actually mandatory, since the alternative is to not receive pay (or substitute vacation pay for the pay not received).

Put another way, the offer of pay is not a gift at all -- it's coercive, i.e., "If you show up, you will get paid -- otherwise not." Therefore, the pay is wages.

Concerning "comp time," under California law, the agreement for comp time, must be in writing between the employer and employee, before the employee performs the work to be paid as comp time, the employee must be regularly scheduled for at least 40 hours per week, and the employee must request comp time as a substitute for overtime in writing. Labor Code 204.3.

Nothing in your fact pattern suggests that this is comp time, or a gift, and that leaves only one other possibility: wages. Therefore, if you attend the picnic and you are paid during that time, then you have worked 40 hours and all of your hours worked after that during the work week are overtime hours.

Hope this helps.

NOTICE: My goal here is to educate others about the law. I am always available to answer your follow-up questions after you click Accept – however, if you do not click Accept, the website gets paid, and I receive nothing. This is true, even if you are on a subscription plan. So please click Accept, so that I will be able to continue to provide this service for others in the future.


And, if you need to contact me again, please put my user id on the title line of your question (“To Socrateaser”), and the system will send me an alert. Thanks!


socrateaser, Lawyer
Satisfied Customers: 34826
Experience: Retired (mostly)
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