HR Management & Compliance

Alternative Workweeks, Part 1: How to Adopt a Program and Avoid Daily Overtime; 8 Steps to Follow






As employees seek to
balance their work and personal time, more employers are looking for ways to adjust
the typical 9-to-5 work schedule in favor of longer workdays and shorter
workweeks. The most popular alternatives are four 10-hour days, three 12- hour
days, or a 9/80 schedule of working 80 hours over nine days. But be aware that
flexible scheduling may bring California’s
overtime law into play—so you could wind up owing a heap of overtime premium
pay if you allow employees to work longer days.

 

Fortunately, however, California law
authorizes “alternative workweeks.” These permit employers to sidestep overtime
requirements when adopting flexible schedules. However, a host of strict rules
apply. In this series on alternative workweeks, we’ll take you through the
basics of alternative workweek programs. This month, we’ll focus on the key
steps to setting up an alternative workweek schedule. In subsequent months, we’ll
cover special rules for the healthcare industry, discuss how to dismantle an
alternative workweek program, and provide sample forms for use with alternative
workweek arrangements.

 


400+ pages of state-specific, easy-read reference materials at your fingertips—fully updated! Check out the Guide to Employment Law for California Employers and get up to speed on everything you need to know.


 

What Is an Alternative
Workweek?

Under an alternative
workweek program, you and your employees who are not exempt from overtime can
agree to a schedule of more than eight hours a day without triggering daily
overtime. Generally, the employer proposes, in writing, a regularly scheduled alternative
workweek, and employees vote on the schedule in a secret ballot election.

 

The type of alternative
workweek that you can adopt will depend on the Wage Order that covers your employees
(see page 7 for more information on Wage Orders). For example, alternative
workweeks that include workdays more than 10 hours long are only permitted in
the healthcare industry (under Wage Orders 4 and 5). And, Wage Orders 14 and 15
don’t contain alternative workweek procedures, although employers under those
Wage Orders can adopt flexible scheduling under general provisions in the Labor
Code.

 

When You Have to Pay
Overtime

If an alternative
workweek schedule is in place, special overtime rules apply. For work over 40
hours a week or beyond the established schedule, up to 12 hours a day, you must
pay overtime at the rate of time and a half. Double time is owed for work over
12 hours in a workday and work in excess of eight hours on those days worked
beyond the regularly scheduled workdays in the alternative workweek schedule.
So, for example, if an employee works a 4/10 schedule and then works 10 hours
on the fifth day that week, you would owe eight hours of overtime at time and a
half, plus two hours at double time.

 

8 Steps to Follow

Here is an outline of
the steps you must take to establish a valid alternative workweek program:

 

1. Identify employees in
a “work unit” who will be covered.
This may include all employees in a “readily identifiable
work unit,” such as a division, department, job classification, shift, separate
physical location, or a recognized subdivision of any such work unit. A work unit
may also consist of a single employee, provided the criteria for an identifiable
work unit are met.

 

2. Prepare a written
proposal.
Describe the new schedule and its impact, if any, on pay and
benefits. (You can’t reduce an employee’s regular pay rate to adopt an
alternative workweek.) You can propose a single schedule for all workers in the
work unit or a menu of schedule options that each employee in the work unit can
choose from.

 

Either way, the proposed
agreement must designate a regularly scheduled alternative workweek in which the
specified number of days and work hours are regularly recurring; however, you
don’t have to specify the actual days that will be worked within that schedule.
The agreement can provide for up to 10 hours a day (with the healthcare
industry exception) and 40 hours a week, and a minimum of four hours per shift.
And, most of the Wage Orders require employees to be scheduled for two
consecutive days off. (The Orders requiring this are 1, 2, 3, 6, 7, 8, 11, 12,
and 13).

 

3. Communicate with
workers.
The
rules require advance written disclosure and meetings regarding the proposed
schedule. The written disclosure must be given to affected employees before the
secret ballot election occurs. It must explain how the proposal affects employees’
wages, hours, and benefits and announce meetings that will be held to discuss
those effects. The notice must be in English and must also be written in another
language if at least 5 percent of affected employees primarily speak that other
language.

 

You must also hold a
meeting at least 14 days before the secret ballot vote to discuss the proposal.
You’re required to mail the notice to employees who can’t attend. An election
will be null and void if you don’t scrupulously follow these disclosure
procedures.

 

4. Hold a secret ballot
election.
Employees must ratify the agreement by a two-thirds majority in a
secret ballot election held during regular work hours at the employees’
worksite.

 

5. Report the results. You must report election
results (including the final vote tally, work unit size, and nature of your
business) within 30 days to the Division of Labor Statistics and Research,
Attn: Alternative Workweek Election Results, California Department of
Industrial Relations, P.O. Box
420603
, San Francisco, CA 94142-0603
.

 

6. Have a grace period. The Wage Orders provide that
employees can’t be required to work the new schedule for at least 30 days after
the election’s final results are announced. The idea is to give employees time
to adjust to the new schedule and make any necessary changes in their personal
schedules. The Wage Orders don’t say whether an employee can voluntarily begin  working the new schedule before the 30 days
are up.

 

7. Have employees select
schedules.
If you proposed a menu of schedule options, employees will have to
choose their schedules. Note that employees can move from one schedule option
to another, with your approval.

 

8. Accommodate certain
employees.
Everyone in the work unit is subject to the new workweek
arrangement, even if they voted against it. However, you must try to arrange a
schedule that doesn’t exceed eight hours in a day for an employee who was
eligible to vote but can’t work the new schedule. You’re permitted (but not required)
to accommodate any employee hired after the election who can’t work the new
schedule. And you must explore accommodations for employees whose religious beliefs
or observances conflict with the schedule.

 

Grandfathered In?

If you already have an
alternative workweek in place that was adopted before 1998, it likely remains valid.
The alternative workweek procedures discussed above were adopted in 2000, when
daily overtime was reinstated following its short-lived repeal in 1998. The 2000
rules grandfathered in arrangements that were properly adopted according to
pre-1998 rules.

 

In addition, individual employees covered by Wage Orders 1, 4, 5, 7, or
9 who were voluntarily working, as of July 1, 1999, an alternative
workweek schedule of up to 10 hours a day were permitted to continue working
that schedule—provided the employer approved the employee’s written request to
do so. The deadline for approving the request was May 30, 2000.