The New York Times recently reported that the economy is producing more goods and services now than it was in December 2007 when the recession officially began, and it’s doing so with five million fewer workers. If anyone is well aware of the increase in employee workloads it’s Human Resources. The number of Helpline questions regarding maximum hours worked, mandatory overtime, discretionary bonuses for salaried workers shouldering the work of those laid off, etc., has been on a rise since the recession began. And if the volume of those calls to the Helpline is any indication, there is no light at the end of the tunnel, at least just yet. Given this sustained trend, HR professionals are well advised to remind themselves of a few important compliance concerns.
Sections 500 to 556 of the Labor Code address a requirement specific to California that all employees be given one day off in seven. The requirement, however, permits employers to average the one-day-in-seven requirement over the course of a calendar month. What does that mean exactly? HR should ensure all employees have had at least five days off for each calendar month. Why five? All workweeks except February (provided it’s not a leap year, of course) include four full weeks and a fraction of yet another one. Employers who round up to five account for the fractional workweek at the end of a month. All of this essentially means that you may work employees 14 days straight (i.e., through two full weekends) but if you do so, ensure employees have five days off (e.g., two full weekends and a weekday) elsewhere in the calendar month.
Another frequent call on the helpline regards whether California employers may impose mandatory overtime requirements for its workforce. In short, California employers may do so, with a few important side notes. Employers who are implementing mandatory overtime policies for the first time should provide as much advance notice as possible so employees with childcare other outside obligations can make adjustments accordingly. If the requirement of mandatory overtime will likely be rolled into the job on a more permanent basis, communicate that mandatory overtime may be required at the hiring stage and ensure the applicant understand as much. It should also be noted that if an employee is required to care for a family member’s serious health condition during time overtime would otherwise be mandated, the Family and Medical Leave Act may be implicated. Section 825.205(c) of Title 29 of the Code of Federal Regulations addresses an employer’s obligations in this regard.
Another frequent issue regards exempt employees who must carry workloads greater than can be justified by their salary, at least until a project is completed or the employer renegotiates the salary. In cases where the extra work has an end date, EG recommends awarding the employee a discretionary bonus over other options. Exempt employees may be paid overtime without compromising their exemption, but the practice is generally not advisable. Any compensation scheme that allows exempt employees to start thinking of their output in the form of "hours worked" starts those employees down a path of equating all work in excess of 40 hours as worthy of overtime compensation. Such habits are hard to break.
Regardless of the regulations discussed above, employers should never work employees to exhaustion or fatigue. Beyond the risk of injury to themselves or others—reason enough not to impose such requirements—recent studies show just how little interruption in normal sleep patterns is necessary before individuals experience notable drops in cognitive functioning. Of course, diminished cognitive functioning translates into less productivity. While working more hours is a sad reality in today’s workplace, employers should normalize the schedule as possible within the context of an increased workload. This helps employees adjust their internal clocks to the employer’s adjusted schedule.
Article by Mark Nelson, J.D., Senior Helpline Consultant, Employers Group