Saturday, November 26, 2022

Flexible Workweek Bill Gets Senate Committee Ax

A California Chamber of Commerce-supported bill providing employers with the opportunity to accommodate employees’ needs as well as business demands by allowing employees to request a voluntary, flexible workweek agreement was rejected by the Senate Labor and Industrial Relations Committee this week.

SB 368 (Berryhill; R-Twain Harte) sought to eliminate the burdensome alternative workweek election process and allow the employee the opportunity to request a four, 10-hour day workweek schedule that will address the needs of both the employer and employee. The arrangement could have been repealed by the employee at any time with proper notice.

Burdensome Process

California is one of only three states that requires employers to pay daily overtime after eight hours of work and weekly overtime after 40 hours of work. Even the other two states that impose daily overtime requirements allow the employer and employee to essentially waive the daily eight-hour overtime requirement through a written agreement.

California, however, provides no such common sense alternative. Rather, California requires employers to navigate a multi-step process to have employees elect an alternative workweek schedule that, once adopted, must be “regularly” scheduled.

This process is filled with potential traps for costly litigation, as one misstep may render the entire alternative workweek schedule invalid and leave the employer on the hook for claims of unpaid overtime wages.

Alternative Workweeks

Currently, 29,249 alternative workweek schedules are reported with the Division of Labor Standards and Enforcement. According to the Employment Development Department’s calculations for the first quarter of 2014, there are approximately 1,370,292 employers in California.

At best, approximately 3% of California employers are utilizing the alternative workweek schedule option. More realistically, however, given that information in the database is according to work unit instead of employer, it is likely that less than 1% of employers in California are utilizing this process.

SB 368 would have relieved employers, especially smaller employers, from the administrative cost and burden of adopting an alternative workweek schedule.

Pursuant to SB 368, at the request of the employee, an employer would have been able to implement a flexible work schedule that allows the employee to work up to 10 hours in a day or 40 hours in a week, without the payment of overtime.

Employers should be able to negotiate through a written agreement, revocable by either party, the daily/weekly schedule that satisfies the needs of both the employees and the employer.

Key Vote

SB 368 failed to pass Senate Labor and Industrial Relations on a 1-4 vote.

Ayes: J. Stone (R-Riverside).

Noes: Mendoza (D-Artesia), Jackson (D-Santa Barbara), Leno (D-San Francisco), Mitchell (D-Los Angeles).

Staff Contact: Jennifer Barrera

Jennifer Barrera
Jennifer Barrera
Jennifer Barrera took over as president and CEO of the California Chamber of Commerce on October 1, 2021. She has been part of the CalChamber team since 2010 and stepped into the top position after serving as CalChamber executive vice president, overseeing the development and implementation of policy and strategy for the organization, as well as representing the CalChamber on legal reform issues. Barrera is well-known for her success rate with the CalChamber’s annual list of job killer legislation, efforts to reform the Private Attorneys General Act (PAGA) and leadership working with employers on critical issues, including most recently those arising from the COVID-19 pandemic. In addition, she advises the business compliance activities of the CalChamber on interpreting changes in employment law. Barrera earned a B.A. in English from California State University, Bakersfield, and a J.D. with high honors from California Western School of Law. See full bio

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