Monday, December 3, 2012

Clearing up the Misconceptions About Holiday Pay

In California, there seems to be a lot of confusion about requirements for holiday pay for employees. Our office routinely fields questions from employers and employees on this topic during the holidays. This blog post is intended to clear up some of the common misconceptions about holiday pay.

In California, hours worked on holidays, Saturdays, and Sundays are treated like hours worked on any other day of the week. California law does not require that an employer provide its employees with paid holidays. The law also does not require that the employer close its business on any holiday or that any employee be given the day off for any particular holiday. If an employer elects to close its business on a holiday and give its employees time off from work with pay, then such a circumstance exists pursuant to an internal policy or practice adopted by the employer. There is nothing in the law that requires such a practice. Additionally, there is nothing in the law that mandates that an employer pay an employee a special premium for work performed on a holiday, Saturday, or Sunday, other than the overtime premium for work performed in excess of eight hours in a workday or 40 hours in a workweek.

Consider the following questions/scenarios that have been posed by employees on this topic:

Q: We get 11 holidays off each year without pay. My sister gets the same 11 holidays off, and she gets paid for all of them. Is my employer breaking the law because he is not paying us for these holidays when he is required to, even though we don't work on any of them? 

Answer: No, your employer is not breaking the law. There is nothing in state law that mandates that employees be paid for holidays that are not worked.

Q: Last week we were closed for business on Monday to celebrate a holiday. Consequently, I worked Tuesday through Saturday that week, eight hours a day. When I got my paycheck this week, I was paid for 48 hours last week at my straight time rate. Shouldn't eight of those hours be paid at time and one-half, the overtime rate, since I was paid for more than 40 hours in the workweek? 

Answer: No, you were paid correctly. In this situation, even though you did not work on the holiday your employer chose to pay you for it, which it has the absolute right and discretion to do. However, the determination of whether overtime pay is due is based on hours worked, and not upon pay received. Thus, since you did not work more than eight hours in any one workday, or more than 40 hours in the workweek, you are not entitled to any overtime pay for the workweek.

Q: My employer is open for business on every holiday, some of which I have to work. Isn't this against the law? 

Answer: No. There is nothing in state law that mandates that an employer must close its business on any particular day, if at all. It is up to your employer to select which days, if any, it chooses to be open and closed for business. If your employer is open on a holiday and schedules you to work on that day, then there is nothing in the law that obligates your employer to pay you anything but your regular pay and any overtime premium for all overtime hours worked.

Should you have continuing questions or concerns about holiday and overtime pay or questions about employment law, then contact Ronnie Gipson at (415) 692-6523 or by email at gipson@higagipsonllp.com.