An Administrator's Guide to California Private School Law

Chapter 6 – Wage And Hour Laws

work, whether or not the school has specifically required the employee to work. 575 If the time worked falls into either category, it must be counted as hours worked. 576 B. D ISTINCTION B ETWEEN W ORK T IME A ND P AID T IME Paid time does not equal working time. Thus, merely because an employee is in a paid status does not mean that the paid status time must be counted as hours worked by the employee. When an employee uses vacation, sick leave, or any other type of paid time off, the hours of paid leave do not count as the employee’s hours worked. For example, if an employee is scheduled to work eight hours in a work day, but comes in two hours late due to a doctor’s appointment and records those two hours as sick leave, and then works 6 hours, the employee will need to work more than two hours before he has actually worked 8 hours in the day and is eligible for daily overtime. C. D UAL E MPLOYMENT A ND D IFFERENT R ATES OF P AY All hours worked by an employee must be combined for overtime purposes, regardless of whether the hours were worked in different departments or positions. However, a school may pay employees at different rates for different positions or types of work. LCW Practice Advisor D. R OUNDING A ND D E M INIMIS R ULES The DLSE and the DOL recognize the practical difficulties faced by schools and employees in recording small amounts of time. When recording and paying wages, the school may “round” an employee’s hours both up and down to the nearest five minutes, tenth of an hour, or quarter of an hour for purposes of calculating the number of hours worked so long as it does not result in a failure to compensate the employees for all the time they actually worked. 577 Previously, insubstantial or insignificant periods of time beyond the scheduled working hours could be disregarded as de minimis time if it was administratively difficult to precisely record the time for payroll purposes. However, in July 2018, the California Supreme Court ruled that employers may not use the federal de minimis doctrine to avoid paying for time worked. 578 As a result, insubstantial or insignificant periods of time beyond the scheduled working hours may not be disregarded and unpaid if they regularly occur. Schools must be sure to capture all time worked that is performed on a regular basis. A school cannot fail to count hours worked, however small, for any duties that the employee performs regularly. 579 If a school pays an employee at two or more different rates of pay in a single workweek, we recommend the different rates for different positions or types of work be pursuant to a written agreement. For non-exempt employees, there could be a potential compliance issue with Labor Code section 2810.5 if the school does not communicate the different rates of pay in a written agreement or notice.

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 167