The California Department of Industrial Relations clarified two points for me in January.
The DIR requires weighted overtime be paid when a worker works at two separate rates in a particular week and the Overtime is NOT the higher of prevailing wage overtime.
- Employee works 12 ST hours at $20 an hour
- Employee works 25 ST hours at $55 an hour
- Employee then works 10 hours (including 3 ST and 7 OT hours) at the rate of $35
The employee is required to factor all the wages and create a weighted OT rate:
(12 X 20 = $240) + (25 x $55 =$1375) + (10 x $35 = $350) =$1965
$1965 ÷ 47 =$41.81
OT is paid at ½ of the weighted average rate: 7 hours at .5 x $41.81= $146.34
$1965 regular wages plus weighted overtime of $146.34 =$2,111.34 total wages for the week.
However, if the overtime occurs on a prevailing wage project, the higher prevailing wage overtime will control.
The DIR also confirmed the ruling of Kern Asphalt. This ruling requires the payment of prevailing wage rates for employee travel time to a project from the employer's shop to the jobsite and from the jobsite back to the shop in the classification of work the employee will perform once they reach the jobsite.
I had argued that the Kern Asphalt decision was issued prior to the DIR establishing drive time rates.
Since prevailing wage is based on the task being performed at the time (driving), I argued that only drive rates should apply to the driving time and not the wage rate the worker would receive once they arrived on the jobsite. The DIR disagreed and reaffirmed the ruling in Kern Asphalt.
Until this issue is litigated, all employers should be aware that if you require your employees to report to the shop and then dispatch them to the jobsite, you will be required to pay them the prevailing wage rate for their drive time based on the classification of work they will be performing at the jobsite.
If employees are to travel from their home to the jobsite, this is considered commute time and any applicable travel and subsistence will apply to this time. If there is no applicable travel and subsistence time, then any reasonable commute time
(less than 2 hours each way) is not subject to any compensation.
Just a reminder that OSHA 300 forms must be posted February 1st.