US labor law for contractor

Hiroyuki Tamura
Hiroyuki Tamura used Ask the Experts™
on
we have a helpdesk business in US.
our contractors uses makeup time to adjust their time.
some contractors come late without notice and work late and request make up time.
do we have a right to reject to do it?
Comment
Watch Question

Do more with

Expert Office
EXPERT OFFICE® is a registered trademark of EXPERTS EXCHANGE®
Enterprise Business Process Architect
Commented:
If they are non-exempt and the start and end times of their shifts are clearly communicated to them, in writing, then you most assuredly do not have to allow them to work late to make up for their lost time.

However...
Make-up time. If an employee requests to take time off for a personal obligation, that employee can request to make up the time he or she missed due to the personal obligation on another day within the same workweek. Specifically, the law provides that an individual can work up to  11 hours in one day to make up for time missed on another day due to a personal obligation without the employer having to pay that employee overtime. The make-up time can also be spread out over one week, as long as the total time in one workweek does not exceed 40 hours.
In order to trigger this exemption, the employee must provide the employer with a signed, written request to make up time missed for a personal obligation. The employer may notify his or her employees of the right to make-up time, however, the employer may not solicit or encourage an employee to make up time he or she has missed.

Moreover, an employer is not liable for overtime pay if an employee, after working makeup time to take time off later in the week, decides not to take the time off after all. An employer should maintain a time-record system reflecting makeup time, and may also require an employee to attach a copy of the signed time request for that pay period to his/her timecard for that pay period.
Alternative workweek schedule. An employer can implement an alternative workweek schedule without having to pay overtime. An alternative workweek schedule is defined by the IWC as a schedule wherein an employee works no more than 10 hours a day or 40 hours a workweek. For example, an employer could allow employees to work four 10-hour workdays instead of five 8-hour days.
Alternative workweek schedules are not meant for a handful of employees within a department who want flexibility. With limited exceptions, everyone in the work unit must work the alternative workweek. The Labor Code defines a “work unit” as a: division, department, job classification, shift, separate physical location, or recognized subdivision of any work unit.
From the California Restaurant Association website.
It's complicated.

Independent contractors, in order to be considered independent contractors rather than employees, generally have to be able to control their own hours. That can be subject to contractual obligations, but the contract has to be one that is positively assented to by both parties; imposing a pro-forma contract may lead a regulator to view the situation as employer/employee rather than an independent contractor.

Because it's complicated, I strongly recommend that you get appropriate legal advice, something which Experts Exchange is unable to provide.
Hiroyuki TamuraField Engineer

Author

Commented:
Thank you. it's tough to decide since former management was allowing makeup time
Darrell PorterEnterprise Business Process Architect

Commented:
If you are a small business, check your local city or county government for low cost labor law counseling;.
The practice followed by former management would be an argument on the side of your contractors. Not to say that policies cannot be changed, it's just that when a policy, even informally, has been followed in the past, it establishes a pattern that may require negotiation or notice to change.

Do more with

Expert Office
Submit tech questions to Ask the Experts™ at any time to receive solutions, advice, and new ideas from leading industry professionals.

Start 7-Day Free Trial