Can a Single Employee Elect an Alternative Work Week?

We are an employer with fewer than 10 employees. Can a single employee elect an alternative work week? If she does, can she work weeks that look like this?:

M-10, T-3, W-5, Th-8, F-4, Sa-10

First, the alternative work week rules apply to all California employers regardless of the size of the company, although there are variations depending on what wage order is applicable to the company (see below).

Under California law, a single employee can elect an alternative work schedule IF the employee is his or her own “identifiable work unit.” The alternative work week law was recently amended to clarify that an “identifiable work unit” is a division, department, job classification, shift, separate physical location, or a recognized subdivision of any of these categories. So, if the lone employee is, for example, the only employee in a particular job classification, then the employee alone can elect an alternative schedule. If, on the other hand, the employee is one of, for example, several counselors employed by the company, then all of the counselors would have to elect the same alternative schedule. Keep in mind that simply changing one employee’s job title would not be sufficient to identify the employee as a separate work unit, if the work the employee performs is the same as the work other employees perform—unless the employee works at a different location or on a different shift (i.e.,day shift versus night shift), or is in a separate and independently recognizable division of the company.

The law states that (outside of the health care industry) an employee on an alternative work week schedule cannot work a regular schedule of more than 10 hours in a day, and that overtime is still due if the employee does work more than 10 hours a day or 40 hours in a week. But, there’s no reason that the hours per week can’t be divided up in smaller increments over more days, so long as it is the employee’s regular schedule and the employee is a regular, full-time employee (as opposed to a temp, or a part-time employee—in which case, the employee would have to be paid overtime after 8 hours in a day).

In addition, except in the construction industry, an employee on an alternative work week schedule must be scheduled to work at least 4 hours per work day.

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.

The allowable structure of an alternative schedule also depends on what wage order applies to the employee. The wage orders are applicable to all California employers/employees, and the rules contained in the order that covers your company must be followed. Some of the wage orders require that employees working an alternative work schedule must be scheduled for 2-consecutive days off (Orders 1, 2, 3, 6, 7, 8, 11, 12, and 13), while employees covered by other wage orders (Orders 4, 5, 9, 10, 15, and 16) do not have to be scheduled for 2-consecutive days off. To determine which wage order covers your company, access the DLSE’s guide (scroll to the last few pages for an index of job classifications showing which wage order applies).

So, for example, the following schedule would be permissible for employees covered by Orders 4, 5, 9, 10, 15, and 16:

Mon-10; Tue-4; Wed-4; Thu-8; Fri-4; Sat-10; Sun-0

While employees covered by wage orders 1, 2, 3, 6, 7, 8, 11, 12, and 13 could work the following schedule:

Mon-10; Tue-4; Wed-8; Thu-10; Fri-8; Sat-0; Sun-0

Also keep in mind that even for a single employee work unit, the election procedures still must be followed. As a California Employer Advisor subscriber, you can access our exclusive article on how to hold an alternative work week election

—Jessica Christensen, Esq.
California Employer Advisor

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