Just because it’s logical doesn’t make it legal. And more often than not, what is logical in California is not necessarily legal.
Take the issue of “comp time.” Typically comp time is used to refer to an equitable idea, where someone works when she isn’t supposed to, and in turn is given different time off as “comp time.” Often such comp time is taken off the books, such as an “extra” vacation day that is not logged as such. That can mean the employer has time records that are purposely inconsistent with hours worked. And that’s a problem.
For exempt employees, comp time is really a misnomer. An exempt employee is paid a salary regardless of hours worked (or not worked) in a week. So an exempt employee who works hard one day still gets paid the same as one who doesn’t. Giving an exempt employee a “comp day” for working on a holiday or a 6th day is really just appropriately treating them as exempt. More often than not, the exempt employee is still checking in (i.e., “working” from home) anyway.
For non-exempt employees in California, such a practice is especially fraught with minefields. The key to paying non-exempt employees correctly is to make sure hours worked (and breaks taken) are accurately logged. So, if a non-exempt employee works on a day she typically is scheduled off, she must be paid for that time, even if it results in daily or weekly overtime. If she’s not paid, that’s illegal. Also, paying her for another day when she hasn’t worked, by putting fake hours on a timesheet, is also a problem, as it sets a precedent for falsifying time records.
Of course, the employer can log the day as a paid “comp day,” but in my experience, most employers don’t have that payroll code, and if they do, they don’t use it consistently. And treating employees inconsistently creates another set of issues.
I have experienced employers get sued for inconsistent comp day practices. It can be from exempt employees who claim they are owed a certain number of comp days for holidays worked (when they were supposed to get another day off but never did). That allegation typically comes with a claim for waiting time penalties for failure to pay all wages upon termination. Or, it can be from non-exempt employees who were given comp time instead of being paid overtime. Even if they agreed to it at the time (“don’t worry boss, I’ll take tomorrow off instead of getting the overtime“), it still doesn’t make it legal.
Back in May there was some press about the Working Families Flexibility Act of 2017 that passed the US House of Representatives, and was moving on to the US Senate for deliberations. But even if that passes and amends the FLSA to allow for comp time instead of overtime, it will not apply in California. Why?
Always remember that California is special, and when it comes to wage-and-hour law, what is logical is typically illegal.
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