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We often have employees who clock in early or clock out late and claim extra hours on their time sheets even though they are only supposed to work 40 hours a week. Do we have to pay our employees for this unauthorized overtime?

Yes. The schedule deviation is a disciplinary issue, not a pay issue. Under the federal Fair Labor Standards Act (FLSA), you have no choice but to pay employees for all hours actually worked. Address schedule violations under your company’s regular corrective action policy. Let your employees know, in writing, that in the future, all overtime must be approved by their supervisor in advance, and that failure to obtain such approval can lead to discipline, up to and including termination. If the excess hours resulted from some kind of supervisory negligence, there would also be an issue to address with regard to the responsible supervisor.

What is considered a "workweek"?

The Fair Labor Standards Act (FLSA) defines an employee's "workweek" as any fixed and regularly recurring period of 168 hours -- seven consecutive 24-hour periods.  It does not need to coincide with the calendar week. An example of this is a workweek of Saturday through Friday.  A workweek may begin on any day of the week and any hour of the day established by the employer.  Employers are free to define the beginning and ending days for their work week as they so choose.  Different workweeks may be established for different employees or groups of employees. Under section 7(a) of the FLSA, overtime compensation is determined on a workweek basis, and must be paid for hours worked over 40 in a workweek. There is no limit under the FLSA on the number of hours employees aged 16 and older may work in any workweek.  It is the responsibility of the employer or supervisor to establish workweeks for each employee, including “exempt” employees, in writing.  Once the beginning of an employee’s workweek is established, it remains fixed.  The designated workweek for an employee cannot be changed unless it is intended to be permanent and may not be done to avoid paying overtime.

We are a small business with 10 employees. Are we required to fill out the OSHA record keeping log of job-related injuries and illnesses? Do we have to post the annual summaries?

Employers with 10 or fewer employees are normally exempt from Cal/OSHA injury and illness record keeping and posting requirements. In addition, employers with 11 or more employees, whose businesses are in certain exempt industries, are not required to keep Cal/OSHA records or post annual summaries. A complete list of exempt industries in the retail, services, finance, insurance, and real estate sectors is available on the Cal/OSHA website.

Note: even if a particular industry is exempt from the record keeping portion of the OSHA regulations, it does not mean the industry is exempt from Cal/OSHA's overall safety requirements. All employers, including those partially exempted by reason of company size or industry classification, must report to OSHA any workplace incident that results in a fatality, in-patient hospitalization, amputation, or loss of an eye.

arrow One of our employees worked Monday through Thursday (8 hours each day), was out all day Friday on sick leave, and worked 8 hours on Saturday. We paid her 48 hours of regular pay. She now claims she is entitled to 8 hours of overtime pay. Is this correct?

arrow Our full-time non-exempt employees are paid on an annual salary basis, and receive overtime if they work more than 8 hours in any one day or 40 hours in any one week. We have an employee who took a Monday off as a vacation day, worked the rest of the week and then worked 4 hours on Saturday. We paid the employee for the vacation day, but did not count those hours for computing overtime. We offered the employee "comp time" for the 4 hours worked on Saturday. Are we required to actually pay the employee for those hours?

arrow Some of our employees are on salary. Can I dock the employee's hours when they leave early? Must I pay them overtime when they stay after hours for inventory?

arrow We want to avoid layoffs and are looking for a way to cut costs. We are considering an option that requires all employees (hourly, salary non-exempt and salary exempt) to take 3 days off without pay during Thanksgiving week and Christmas week. Is this legal in California?

arrow How many hours must you pay a salaried employee who comes into work and then an hour or so later goes home sick?

arrow Can a salaried person be asked to clock in each day and for lunch if that person is on probation for arriving late, leaving early, etc.?

Is the Medical Certification Form (Form WH-380) provided by the medical provider or by the employer?

An employer may require that the need for leave for a serious health condition of the employee or the employee's immediate family member be supported by a certification issued by a health care provider. The employer must allow the employee at least 15 calendar days to obtain the medical certification. The "Certification of Health Care Provider" (optional form WH-380) may be used to obtain the certification. Form WH-380 is available in the Related Links section. Additional information on the Family and Medical Leave Act (FMLA) is available from the U.S. Department of Labor.

arrow We recently hired and terminated an employee with cause. Though there was no documentation provided to the gentleman incident by incident, we believed due to the "at will" and "probationary" rules, there would be no issue with EDD. What are the guidelines with regard to newly hired and fired employees and their termination?

arrow I was reading about a recent lawsuit that invalidated a noncompetition agreement between a California and a Minnesota employer. The "California Public Policy" was mentioned. Can you explain to me what that policy is?

arrow We have recently begun a transportation division within our company. The owner of our business also owns a like business in another California city. One of his employees has advised us of a 40-hour workweek rule on truck drivers. This rule is supposed to be referenced in the Federal Code of Regulations, Title 49. He has been unable to provide us with a copy of this rule and I have been unable to find this section in the U.S. Department of Transportation.

arrow We have a California employee who is on medical disability as of March and is not scheduled to return until at least June, as she is pregnant and having complications (this is why she is on leave). Do we have to pay her medical insurance or can we offer her COBRA coverage?

arrow If an employee accrues their vacation time on their anniversary date, but then has a leave of absence (maternity, FMLA, personal, etc) for one month or more, can the employer permanently change their vacation accrual date (i.e., accrual is 5/16 and they are on leave for 2 months.. change accrual date to 7/16)? If allowed, would the rules be different depending on the reason for the leave of absence?

arrow Is there a federal law that states that commissions earned but not yet paid, must be paid to an employee--even after termination?

arrow Is an employee out on disability entitled to major holiday pay? This is someone who would, under normal circumstances, get holiday pay. My common sense says no, but with all the quirks we deal with, its always best to ask.

arrow Is the Eight-Hour-Day Restoration and Workplace Flexibility Act just in the state of California, or is it national?

arrow I am a California employer. I received two orders of wage garnishment: one for state taxes and the other court ordered. Both are entitled to the full 25%. Do I withhold for both, or do I only withhold the state taxes and nothing on the court order?

arrow What is the Employer Information Report EEO-1?

arrow Are employers required to give employees access to their personnel files?

arrow Must employers covered by the Fair Labor Standards Act (FLSA) count hours spent by employees at training programs as work time?

arrow How do employers comply with the New Hire Reporting laws?

arrow Are employees required to provide medical certification when requesting leave under the Family and Medical Leave Act (FMLA)?

arrow Are employers required to continue the employee's health benefits during FMLA leave?

arrow Are employers required to pay overtime rates to independent contractors?

arrow If a worker is incorrectly classified as an independent contractor, is the worker entitled to back overtime pay?

arrow Does the Fair Labor Standards Act require rest breaks for employees?

arrow Does the Fair Labor Standards Act require vacations for employees?

arrow Is the employer required to provide workers' compensation coverage?

arrow Is the employer required to have an employee handbook?

arrow Is AIDS considered a disability under the Americans with Disabilities Act (ADA)?

arrow Is drug abuse considered a disability under the Americans with Disabilities Act (ADA)?

arrow Is alcoholism considered a disability under the Americans with Disabilities Act?

arrow Do employers need a reason to terminate an employee?

arrow Should a terminated employee be given a written document?

arrow What is the best way to avoid liability for a sexual harassment claim?

arrow In CALIFORNIA, when an employee is terminated or leaves prior to his anniversary date, must the employer pay the employee for accrued vacation time when the company policy specifically states that vacation accrues only upon the employee's anniversary date (i.e., five days vacation earned on the first anniversary, 10 days vacation earned on the second anniversary, etc.)?

arrow Our business uses E-Verify to check the employment eligibility status of employees. Since we use the E-Verify program, are we still required to complete an I-9 Form for employees?

arrow What are the consequences if an employer is not able to accommodate an employee who requests the application of "intermittent" leave? We have an employee who has a wide variety of medical related problems, such as: migraines, blood pressure, depression, nosebleeds, etc. The job held is a full-time position supervising others and to work part-time is not acceptable. Would appreciate any guidance available.

arrow Do you have anything pertaining to policies for internet usage and/or personal usage of the company computer during working hours?

arrow It has become necessary to implement an office dress code. Any suggestions or samples of dress codes?

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