Eleven hours in a day and 40 in a week. Those are the ceilings on makeup time under Labor Code section 513, which lets an hourly employee who misses work for a personal obligation make up the hours later in the same workweek without triggering daily overtime. The exception only works if the employee asked in a signed writing and the employer didn’t push the idea. When the paperwork is missing, every makeup hour past eight in a day can turn into an unpaid overtime claim.
What does Labor Code section 513 allow?
It lets an employer approve extra hours on one day to replace hours an employee lost on another, without paying daily overtime for them. Under section 513, if an employer “approves a written request of an employee to make up work time that is or would be lost as a result of a personal obligation of the employee,” the makeup hours “may not be counted towards computing the total number of hours worked in a day for purposes of the overtime requirements specified in Section 510 or 511.”
That’s a narrow exception to a strict rule. Labor Code section 510(a) requires time and a half for “Any work in excess of eight hours in one workday,” along with weekly and seventh-day overtime. Federal law has no daily overtime rule, so this is a purely California problem, and it’s one that multistate employers often miss.
The exception has a hard stop. Section 513 still requires overtime for “hours in excess of 11 hours of work in one day or 40 hours in one workweek.” An employee who leaves at noon on Monday and works 12 hours on Wednesday to make it up still has to be paid overtime for the twelfth hour, even with a perfect written request.
What has to be in the written request?
The employee’s signature, for each occasion. The statute says, “An employee shall provide a signed written request for each occasion that the employee makes a request to make up work time pursuant to this section.” A standing policy acknowledgment signed at hire doesn’t satisfy that. Neither does a manager’s note in the scheduling system.
The wage orders add detail. Wage Order 4, section 3(M), which covers most office and technical jobs, allows a single request for a recurring obligation: an employee who knows the obligation “will recur at a fixed time over a succession of weeks” may “request to make up work time for up to four (4) weeks in advance.” The same provision adds that “the makeup work must be performed in the same week that the work time was lost.”
A good request form is short. It names the date and hours missed, says the reason is personal, lists the makeup date and hours in the same workweek, and carries the employee’s signature and date. The form should be signed before the makeup hours are worked. A form signed afterward invites the argument that it was papered to fit the payroll.
Can a manager suggest makeup time?
A manager can mention that the option exists but can’t encourage or solicit it. Section 513 says an employer “is prohibited from encouraging or otherwise soliciting an employee to request the employer’s approval to take personal time off and make up the work hours within the same week.” The wage order adds that “an employer may inform an employee of this makeup time option.”
The line between informing and soliciting is where these claims are won or lost. A neutral sentence in the handbook describing the option is informing. A supervisor who tells a crew that anyone who wants Friday off should work long days earlier in the week, and hands out request forms, is closer to soliciting. So is a schedule built around makeup time that the employer needs for its own staffing reasons.
The cleanest practice is to keep managers out of the initiation. The employee starts the request, HR or payroll checks it against the workweek and the 11-hour cap, and the manager approves or denies it based on business needs. Managers should never present makeup time as a substitute for scheduled overtime.
How do makeup time arrangements turn into overtime claims?
When the requirements weren’t met, the exception doesn’t apply and the hours are ordinary daily overtime under section 510. The usual fact patterns repeat across cases.
The request was verbal. A long-time employee asks to leave early for a child’s appointment, the manager says fine, and the employee works a ten-hour day later in the week. No form exists. Without the signed writing, the two hours past eight are overtime.
The makeup crossed the workweek line. An employee missed Friday and made it up the following Monday. If the workweek starts on Sunday, that’s a different week, and section 513 doesn’t apply.
The employer drove the arrangement. The plant needed a four-day week during a slow season and asked everyone to sign makeup forms. That looks like an alternative workweek schedule adopted without the required election, not makeup time for a personal obligation.
Each of those claims can be multiplied across a workforce in a class action or a PAGA notice. Unpaid overtime also tends to bring derivative claims, including inaccurate wage statements and, for former employees, late final pay.
How do the makeup time requirements line up?
| Requirement | Where it comes from | Record that proves it | Common failure |
|---|---|---|---|
| Lost time due to the employee’s personal obligation | Lab. Code § 513 | The request form stating a personal reason | Business-driven schedule changes labeled as makeup time |
| Signed written request for each occasion | Lab. Code § 513 | A dated, signed form for each occurrence | Verbal approvals and blanket acknowledgments |
| Recurring obligations, up to four weeks ahead | Wage Order 4, § 3(M) | One form identifying the recurring time and weeks covered | Open-ended standing requests |
| Makeup in the same workweek | Lab. Code § 513; Wage Order 4, § 3(M) | Time records tied to the employer’s defined workweek | Makeup that slides into the next week |
| No more than 11 hours a day or 40 a week | Lab. Code § 513 | Daily time records | Treating every makeup hour as straight time |
| No encouragement or solicitation | Lab. Code § 513; Wage Order 4, § 3(M) | Policy language and manager communications | Supervisors proposing makeup days to cover staffing |
What should an employer do once an overtime claim targets makeup time?
Makeup time cases are document cases. The employer either has the signed forms and the time records that match them, or it doesn’t, and the analysis starts there.
- Preserve the request forms, the time and payroll records, the scheduling system data, and the managers’ emails and texts about schedule changes, along with every version of the makeup time policy.
- Calendar the deadline on the demand letter, PAGA notice, or complaint, and check for an arbitration agreement and an employment practices liability (EPLI) policy that requires prompt notice.
- Identify the managers who approved makeup time for the employees in the claim, and stop any action against the employee who raised it.
- Match each makeup day to a signed request in the same workweek, flag every day over 11 hours, and confirm how the payroll system defines the workweek.
- Talk to a lawyer before recalculating and paying back wages, because a payment made without analysis can be used as an admission or miss part of the exposure.
Businesses comparing employment defense attorneys in California can see how the firm handles overtime class actions and PAGA claims on its practice page.
Makeup time questions from California employers
Does makeup time apply to exempt employees?
No. Exempt employees aren’t covered by the overtime rules in section 510 in the first place, so there’s nothing for section 513 to exclude. Makeup time is a tool for nonexempt hourly employees. If an employer is using makeup forms for salaried staff, that’s worth a second look, because it may be a sign the employees are being treated as nonexempt in practice.
Can an employer deny a makeup time request?
Yes. The statute applies when an employer “approves a written request,” which means approval is the employer’s call. Denials should rest on business needs and be applied consistently. A pattern of approving requests from some employees and denying them for others can become evidence in a discrimination or retaliation claim.
Is makeup time the same as an alternative workweek schedule?
No. An alternative workweek schedule is a regular schedule adopted through a formal process that lets employees work longer days without daily overtime. Makeup time is an occasional, employee-initiated swap of hours within one week. An employer that uses makeup forms to create a standing four-day schedule risks losing both defenses.
What if the employee forgot to sign the form?
Then the exception likely doesn’t apply to those hours, and the safer course is to treat hours past eight that day as overtime. An unsigned form, or one signed after the work was done, is weak evidence of an advance written request. The fix going forward is a process that blocks makeup hours in the timekeeping system until a signed request is on file.
If an overtime claim targets your makeup time practice
If your company has received a demand letter or PAGA notice claiming makeup hours should have been paid as overtime, the signed requests and the workweek definition usually decide how much of the claim is real. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving makeup time and daily overtime. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statutes are Labor Code section 513 and Labor Code section 510. The wage order is Industrial Welfare Commission Order 4-2001, California Code of Regulations, title 8, section 11040.
This post is general information about California employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.