Alternative workweeks,
allowed under
law, provide employers with a practical tool for permitting employees to work
longer days and shorter workweeks without incurring overtime pay. Generally,
the employer proposes, in writing, a regularly scheduled alternative workweek
that employees vote on in a secret ballot election.
Last month, in Part 1 of
our series on alternative workweeks, we ran down the basics for implementing an
alternative workweek schedule. This month, in Part 2, we explain the special
rules that apply to the healthcare industry, where longer work shifts of up to 12
hours are common.
Rules for the Healthcare
Industry
The rules governing
alternative workweeks for healthcare industry employees are set out in Wage Order
4 (Professional, Technical, Clerical, Mechanical, and Similar Occupations) and
Wage Order 5 (Public Housekeeping Industry). Although other employees covered
by these and other Wage Orders are limited to alternative workweeks with up to
10-hour days, the special provisions for healthcare employees permit workdays
of up to 12 hours. Typically, this results in what’s known as a 3/12 workweek—three
workdays each consisting of 12 hours. (Note that the provisions permitting 4/10 and 9/80
alternative workweek schedules apply generally to all employees covered by Wage
Orders 4 and 5, including those in healthcare.)
Employers with
healthcare employees have three options for implementing 12-hour shifts:
1. Formal alternative
workweek. You can institute a regularly scheduled alternative workweek
program allowing employees to work in excess of 10 but no more than 12 hours in
a workday, without paying daily overtime. The alternative workweek must be adopted
by a secret ballot election. Double time is owed for all hours worked over 12
in a workday, and time and a half is owed for hours over 40 in a workweek. (See
“Adopting a Formal Alternative Workweek” for more details on the rules that
must be followed.)
2. Grandfathered
schedule. Valid 12-hour alternative workweeks that were in place in 1998
(when the daily overtime requirement was temporarily wiped out) and adopted by
secret ballot election under Wage Order 4 or 5 were grandfathered in when daily
overtime was reinstated in 2000. To qualify for grandfathering, employers had
to file a report with the California Department of Industrial Relations (DIR)
by Jan. 1, 2001. If you have a grandfathered schedule, you must make a
reasonable effort to find another work assignment for an employee who
participated in the election but can no longer work the alternative schedule.
3. Normal overtime. If you don’t want to set
up a formal alternative workweek, you can simply schedule employees to work
12-hour shifts and pay the normal overtime that would be due. This means, of
course, you would have to pay time and a half for hours over eight and up to 12
in a workday.
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.
Adopting a Formal
Alternative Workweek
Here’s a closer look at
the rules for adopting a formal alternative workweek schedule consisting of up
to 12-hour days for healthcare employees:
Healthcare industry
employees only. The 12-hour shift option only applies to workers who meet these two
requirements: 1) the employee must work for a healthcare industry employer (see
below); and 2) the employee must provide patient care; work in a clinical or
medical department; work primarily or regularly as a member of a patient care
delivery team; or be a licensed veterinarian, registered veterinary technician,
or unregistered animal health technician providing patient care. Healthcare
industry employers include hospitals; skilled nursing facilities; intermediate
care and residential care facilities; convalescent care institutions; home
health agencies; clinics operating 24 hours a day; and clinics performing
surgery, urgent care, radiology, anesthesiology, pathology, neurology, or dialysis.
Overtime rates. Double time must be paid
for all hours worked in excess of 12 in a workday. Time and a half must be paid
for hours worked over 40 in a workweek.
Minimum schedule. An alternative workweek
schedule established under these rules must provide no less than four hours of
work in any shift. Note, too, that if you require an employee subject to an
alternative workweek schedule to work fewer hours than the schedule sets out
but more than eight—for example, you send workers home early—the overtime
exemption for that day is lost.
Temporary assignments. The same schedule and overtime
standards will apply to any employee who is temporarily assigned to a work unit
that has an alternative workweek schedule.
Accommodation. Employers that operate
licensed hospitals or provide personnel for operating licensed hospitals and
adopt a 3/12 workweek must make a reasonable effort to find another work
assignment for any employee who participated in the election but can’t work the
12-hour shifts. However, the employer isn’t required to offer a different work
assignment to an employee if one isn’t available or if the employee was hired
after the 3/12 workweek was adopted.
Hours restrictions. There are strict limits
on requiring healthcare industry employees subject to a 3/12 workweek to work
more than 12 hours. You cannot require an employee to work more than 12 hours
in a 24-hour period unless the chief nursing officer or authorized executive
declares that: 1) a healthcare emergency exists; 2) all reasonable steps have
been taken to provide required staffing in another way; and 3) continued
overtime is necessary, considering operational status needs. A healthcare
emergency means an unpredictable or unavoidable occurrence at unscheduled intervals
relating to healthcare delivery and requiring immediate action.
There is one situation
in which you can require an employee to work up to 13 hours, even when a healthcare
emergency doesn’t exist: if the employee scheduled to relieve the subject
employee doesn’t report for duty as scheduled and doesn’t inform the employer
at least two hours in advance that he or she won’t be showing up for work.
You cannot require an
employee on an alternative workweek to work more than 16 hours in any 24-hour period—even
if an emergency exists—unless by voluntary mutual agreement between the
employee and employer. And, you cannot require an employee to work more than 24
consecutive hours until he or she has no less than eight consecutive hours off
duty immediately following the 24 consecutive hours of work.
Election and reporting
procedures. The alternative workweek election process set out in Wage Orders 4
and 5 generally applies to alternative workweeks for healthcare employees. The
procedures require identifying the work unit; preparing a written schedule
proposal and communicating it to employees; holding a secret ballot election;
and reporting election results to the DIR’s Division of Labor Statistics and
Research. See CWHA January 2008 for details on these procedures.
Stay Tuned
Next month, our series will continue with the steps employers must
follow to dismantle an alternative workweek program.