I’d like to move my employees from a 5-day week to a 3- or 31/2-day week—that is, change over to 12-hour shifts from 8-hour shifts. Is there a way to do this without paying overtime? And is there any downside? — Alan, HR manager in San Diego
The HR Management & Compliance Report: How To Comply with California Wage & Hour Law, explains everything you need to know to stay in compliance with the state’s complex and ever-changing rules, laws, and regulations in this area. Coverage on bonuses, meal and rest breaks, overtime, alternative workweeks, final paychecks, and more.
Lloyd W. Aubry, Jr., of Morrison & Foerster, and former California Labor Commissioner, tackles this question.
Unless your employer is in the healthcare industry, you cannot go to 12-hour shifts without paying at least some overtime. Under Labor Code Section 511, employers can propose to a particular work unit an alternative work schedule of workdays no longer than 10 hours per day within a 40-hour workweek without paying the daily overtime that the Industrial Welfare Commission Orders would otherwise require.
Such a schedule can only be implemented if it is approved in a secret ballot election by at least two-thirds of the affected employees. Before the election can occur, the employer must provide to the employees written disclosure of the effects of the proposed schedule on their wages, hours, and benefits. The employer must also hold a meeting at least 14 days before the voting to allow discussion of the effects of the alternative work schedule on the employees. Once the secret ballot election has been held, the election results must be filed with the Division of Labor Statistics and Research within 30 days. The requirements for conducting the secret ballot election can be found in Section 3 of the applicable Industrial Welfare Commission Order.
The proposed schedule may not call for more than 10 hours on any one day. However, the Industrial Welfare Commission (IWC), in its Statement of the Basis to the 2001 Wage Orders, indicated that employees could be required to work beyond the 10 hours (i.e., 12 hours, as the questioner proposes) with the payment of overtime for hours 11 and 12 at time and one-half. The IWC indicated that working beyond the schedule was permissible on a ‘recurring’ basis.
If your organization has little experience with these extended schedules, it may be wise to have an experienced employment attorney draft the documents and guide you through the secret ballot election. This is because there is a stiff penalty for failure to comply. If any of the requirements of the Wage Orders is not met, the election can be invalidated, requiring you to pay overtime for up to four years if the alternative work schedule was in effect that long.
Lloyd W. Aubry, Jr., is of counsel at the San Francisco office of law firm Morrison & Foerster.