days and shorter workweeks without incurring overtime pay by implementing an
alternative workweek arrangement. In Parts 1 and 2 of our series on alternative
workweeks, we guided you through the steps to set up one of these flexible
schedules and explained the different rules that apply for certain healthcare
employers and employees. This month, we lay out the procedures for dismantling
an alternative workweek already in place.
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.
Terminating an
Alternative Workweek
Either the employer or
the affected employees can initiate the termination of an alternative workweek.
Here’s how it is done:
Employers. You can end an
alternative workweek schedule unilaterally, without employee approval. You must
simply provide employees with advance notice of the termination and then begin
paying daily overtime when it’s required. The law doesn’t specify how much notice
you must provide, but you should probably give employees at least 30 days to
adjust to the change.
Employees. The employees covered by
an alternative workweek schedule may petition the employer for a repeal. The
petition must be signed by at least one-third of the affected employees. Then,
the employer must hold a new secret ballot election within 30 days of the date
the petition is submitted. The election must be held at the worksite during
regular working hours. If at least two-thirds of the affected employees vote to
terminate the alternative workweek, you then have 60 days to do so and begin
paying daily overtime. However, the California Division of Labor Standards
Enforcement may grant you an extension if the 60-day period poses an undue
hardship for you. Note that to hold a repeal vote, at least 12 months must have
elapsed since the same group of employees voted to adopt the alternative
schedule or to repeal it in an earlier attempt. (This requirement is reduced to
six months for construction industry occupations covered by Wage Order 16.)
The employer is
responsible for all costs of conducting an alternative workweek election,
whether it’s for adopting or repealing such an arrangement.
Reporting Election
Results
Within 30 days after
election results are final, you must report them to the Division of Labor
Statistics and Research, Attn: Alternative Workweek Election Results, California
Department of Industrial Relations,
Box 420603
Be sure to include the final vote tally, work unit size, and the nature of your
business.
No Retaliation
The Labor Code and Wage
Orders prohibit you from reducing an employee’s regular hourly pay rate “as a result
of the adoption, repeal, or nullification” of an alternative workweek schedule.
This is meant to prevent employers from penalizing employees who do or don’t
want an alternative schedule. Thus, for example, if employees vote to terminate
a 4/10 workweek that was saving you a bundle on daily overtime, you can’t reduce
their hourly rate to make up for your now owing overtime if they work more than
eight hours in a day.
Of course, this doesn’t
prevent you from reducing an employee’s pay rate for legitimate reasons, such
as in connection with a demotion, a transfer to a lower paying job, or for
economic reasons unrelated to an alternative workweek repeal. But note that if
such a pay reduction is close on the heels of an alternative workweek repeal,
you could have a hard time proving that it wasn’t retaliatory.
If employees vote to terminate a 4/10 workweek that was saving you a bundle on daily overtime, you can’t reduce their hourly rate to make up for your now owing overtime if they work more than eight hours in a day
Also, keep in mind that
you cannot discharge or discriminate against employees for expressing opinions concerning
the alternative workweek election or for opposing or supporting the adoption or
repeal. You may, however, express to employees your position concerning the
alternative workweek—as long as your statements or actions don’t amount to
coercion or intimidation.