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Hours and Overtime

Know Your Rights

Are you being paid properly for overtime?

Do you know your rights regarding overtime? For instance, your contract probably states that you shall be paid time-and-one-half for all work performed over eight hours a day or 40-hours a week, or that you may receive compensatory time (comp time) equal to time-and-one-half.

This right is established in the California Education Code and a federal law called the Fair Labor Standards Act (FLSA). In fact, the FLSA requires employers to compensate employees for all work "suffered or permitted." The FLSA also forbids employers from allowing employees to "volunteer" to work; employees must be paid to work!

"Suffered or permitted" refers to work assigned to you by your supervisor (permitted). It also includes work you perform before your shift, during your breaks, during your lunch periods, and work you perform at home (suffered). Work "suffered or permitted" over eight hours a day or 40 hours a week must be paid at the overtime rate. You also receive overtime pay for Saturday work even if you are not a full time employee.

If you are a part-time employee, then you must be paid for all hours worked less than overtime. That means "comp time" cannot be provided for work "suffered or permitted" under eight hours per day or 40 hours per week.

 

Frequently Asked Questions about Hours and Overtime

The following questions were answered by CSEA staff experts. If you don't see the answer to your question or you need further assistance, contact your CSEA job steward or labor relations representative.

Question: The school site council just voted to reduce the Instructional Assistant hours from 4 hours per day to 3 hours to buy a new computer for the reading lab. Can they do this?

Answer: The regular minimum number of hours per day is set by Education Code section 45101(a). The school site council has no legal authority to change your hours or other working conditions. Under the Educational Employment Relation Act (EERA), the only parties' that have a right to negotiate over changes in working conditions are the district and your union, CSEA. The most important thing you should do is to contact your Chapter President or Labor Relations Representative immediately. Generally, the decision to reduce hours is negotiable. Even if the district has a right under contract to reduce hours without negotiating, they are still required by the Education Code to provide a 45-day notice and to reduce hours by seniority. Again, the most important thing to do if this occurs is to contact your CSEA representative immediately.

Reference: Education Code Sections 45101(a), 88001(a), 45117, 88017, 45308, 88127. North Sacramento Unified School District (1981) PERB Decision No. 193 [6P13026]; Healdsburg Union High School (1984) PERB Decision No. 375 [8P15021]

Question: I work an eight-hour day, but my supervisor has told me that I have to stay after my quitting time of 5:00 p.m. to finish a report that is due. It took me two days to finish the report, working an extra hour and a half each day. I asked my boss for three hours of overtime for the work but he said he was not authorized in his budget to provide overtime, so he couldn't and wouldn't. Can he do that?

Answer: The Education Code in section 45128 establishes that overtime that is "ordered" must be compensated at either time and a half pay or for compensatory time at one and a half hour for each hour worked. The Fair labor Standards Act mandates that any overtime work that is "suffered or permitted" must likewise to compensated at an overtime rate or with compensatory time. Since your supervisor directed you to stay late to complete the report, there is no question that you must receive overtime payment or compensatory time off. Check with your Steward, Chapter President or Labor Relations Representative to see what how your local chapter contract sets forth the option of overtime payment or compensatory time.

Reference: Education Code Sections 45128, 88027, 45129, 88028, 45131, and 88030. Fair Labor Standards Act (FLSA).

Question: I work as a three hour per day Instructional Assistant in the mornings. Last month the principal asked me if I wanted to work an extra hour per day doing noon-duty supervision. In my district, noon duty supervision is a part of the Instructional Aide's job description. I said yes and worked the extra hour for the last month. The office secretary told me to put the extra hour on an "hourly" time card at an hourly pay rate ($2.00 less an hour). Can they do this?

Answer: No. While "part-time playground positions" are excluded from the classified service, here work is within the established bargaining unit position of "Instructional Aide." When the contract sets a clear salary rate for work performed by Instructional Aides, the employer is required to pay that rate of pay and not some non-negotiated "hourly" rate. For more specific information about hours and overtime, read your contract or contact your Job Steward, Chapter President or Labor Relations Representative.

Reference: Education Code section 45101(a), 88001(a); 45103, 88103; 45160, 88160. Marysville Joint Union High School District (1983) PERB Decision No. 314 [7P14163]

Question: I work six (6) hours per day, thirty (30) hours per week as a Library Aide for my school. The principal has asked me to work this Saturday from 8:00 a.m. to 5:00 p.m. at the schoolbook fair. I asked, is this overtime? She said no because I would still only work 38 hours for the week. Is that right?

Answer: No. The California Education Code sets forth, specific overtime standards for part-time employees. If you work five consecutive days at four (4) or more hours per day all hours worked on the sixth and seventh days must be paid at a rate equal to 1 ½ times your regular rate of pay. An employee whose regular assignment is less than four (4) hours per day must be paid at the overtime rate for all hours worked on the seventh day. Most contracts have language which addresses compensatory time off in lieu of pay. For more specific information about hours and overtime, read your contract or contact your Job Steward, Chapter President or Labor Relations Representative.

Reference: Education Code section 45131, 88030

Adjustment of Part-time Assignment

Question: I am a 4.5-hour Instructional Assistant. For the last four months I have been working 5.5 hours each day. Last month I was sick for three days and received sick leave pay for only 4.5 hours. Is this right?

Answer: No. Education Code Sections 45137 and 88036 (Community Colleges) state that when an employee works a minimum of 30 minutes per day in excess of her/his part-time assignment for 20 consecutive days or more, the basic assignment must be changed to reflect the longer hours in order to acquire fringe benefits on a properly prorated basis.
The "fringe benefits" referred to here are sick leave and all other benefits provided by law to classified employees. "Fringe benefits" as used in the Education Code does not include health and welfare benefits. To determine whether you are entitled to health and welfare benefits, refer to your contract. For more specific information about your rights to an adjustment of assigned time, read your contract or contact your Job Steward, Chapter President or Labor Relations Representative.

Reference: Education Code Sections 45137 and 88036.

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Last Update: 7/15/2019