An Administrator's Guide to California Private School Law

Chapter 6 – Wage And Hour Laws

J. U NSCHEDULED O R U NREPORTED O VERTIME Since hours worked includes all the time the employee is subject to the control of the school or is suffered or permitted to work, the school must pay for the time worked if a school has “constructive” knowledge of the fact that the employee is working overtime, regardless of whether the school required the employee to perform the work. 618 Schools must be vigilant to prevent employees from “volunteering” additional work time, such as coming in early or staying late. Federal regulations specifically state:

[I]t is the duty of management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so. 619

The fact that an employee does not report the time or record it on a time sheet will not bar the employee from recovering back pay and overtime at a later date if the employee can prove that the school’s management knew or should have known about the work being performed. However, an employer may not be obligated to pay an employee for alleged hours worked where there is no evidence the employee reported the hours and where there is no evidence the employer otherwise had notice. 620 Furthermore, if there is evidence that the employee knew of a school’s established overtime procedure or policy and did not follow it, the school may have a defense to claims for additional wages. 621 LCW Practice Advisor Schools should not give non-exempt employees

remote access to work computers and email. Giving non-exempt employees the ability to access these items from home computers or through their smart phones creates the potential for unreported overtime.

B ASIC O VERTIME R EQUIREMENTS

Section 6

A. D AILY , D OUBLE A ND W EEKLY O VERTIME Non-exempt employees are entitled to overtime pay if they work daily, double, or weekly overtime. 1. D AILY O VERTIME Any work in excess of eight hours in any work day must be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee unless there is an established alternative workweek. 622

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 175