Question
: Is there a new law that requires staff to be paid overtime (rather than a stipend) to work after-school games or dances?Response: There is not a new law that we know of, requiring staff to be paid overtime, rather than a stipend, to work after school games or dances. But there are laws in place and district policy that must be taken into consideration. Your human resources department would be the appropriate place to ask this question as often district regulations, personnel commission rules or collective bargaining provisions govern the choice of district employees to perform extra functions for the ASB.
Remember that someone who works for the district and also performs extra duties for the ASB must be paid as an employee through the payroll system. Your example of an employee working at after school games or dances is a perfect example of this. The staff member(s) must be paid on the district’s payroll because she or he is already an employee of the school district. In addition to determining if this additional work assignment is subject to overtime pay, the central office would determine if any collective bargaining parameters must be considered. Whether paid as overtime or as a stipend, the ASB may not write a check out of ASB funds to pay for this additional work due to the employee’s district employee status.
For most classified employees, overtime is paid for work performed beyond eight hours in a day and 40 hours in a week. This applies to both full-time and part-time positions, and the regular work hours for these positions are as designated by the Board or Personnel Commission (if your district is a personnel commission district). Labor Code section 510 states " . . . Any work in excess of eight hours in one workday and any work in excess of 40 hours in one workweek and the first eight hours worked on the seventh day of work in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay . . . " Adding to that, Education Code section 45128 states, " . . . Overtime is defined to include any time required to be worked in excess of eight hours in any one day and in excess of 40 hours in any calendar week." This language overrides the Labor Code language for school districts, meaning that school districts must compensate employees at overtime rates only if they work more than eight hours in a day and more than 40 hours in a week. This Code section also has the provision that if the established workday is more than seven but less than eight hours a day and is more than 35 but less than 40 hours a week, all time worked beyond the established workday and workweek is compensated at overtime rates. For example, if a district has employees who work seven-hour days and 35-hour weeks, those employees are compensated at overtime rates for all hours exceeding seven in a day and 35 in a week, thereby lowering the threshold for overtime pay. So, if working at the game or dance puts the employee in overtime pay due to number of hours worked in the day or week, they could not be paid a stipend to get out of paying them overtime.
Your district’s collective bargaining contracts may include overtime compensation language which may override the information stated above in law and Education Code. Districts can always be stricter than the law, and often are. So, you may want to check out the collective bargaining employee contracts to see if there is extra language included on overtime, as well as language on whether a stipend is or is not appropriate.
8/29/08
