In Episode 124 of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank and employment law expert Matthew Roberts discuss alternative workweek schedules.
Over the last month [article originally published on July 13], there has been an uptick in questions regarding alternative workweek schedules on the CalChamber Labor Law Helpline, Frank tells podcast listeners.
Roberts hears from many employers who are thinking about their return-to-work plan and what it will look like — whether it will be a hybrid work model or if employees will continue to work remotely.
News reports indicate that many employees want to continue having some kind of remote life, and employers are exploring the different ways they can bring folks back to the office while maintaining that remote life, Frank adds.
What Is an Alternative Workweek Schedule?
In California, an alternative workweek schedule is a very specific arrangement with many hoops and hurdles, Frank says.
The arrangement gives employers a way to create certain shift lengths for nonexempt employees that don’t require the payment of overtime. Under state law, hours worked in excess of 8 hours in a day or 40 hours in a week would typically incur overtime pay, Roberts explains.
While employers can set any schedule that fits their work needs, some common alternative schedules include “4/10s” (10-hour shifts, four days a week) and “9/8/80s” (eight 9-hour days and one eight-hour day in a two-week period with one scheduled day off every other week).
Because alternative workweek schedules are a way to work around overtime pay while giving workers flexibility, the arrangement applies to nonexempt employees specifically because exempt employees are paid a set salary and don’t typically incur overtime pay, Roberts clarifies.
Adopting an Alternative Workweek Schedule
The first step employers must take in adopting an alternative workweek schedule is to check the California Wage Order that is specific to their industry. Wage Orders contain industry-specific rules and procedures, and indicate what shift lengths are permitted for each industry, Roberts explains.
If an employer is permitted by the Wage Order to adopt an alternative workweek schedule, the employer should then begin strategic planning and decide which employees will be bundled into the new schedule, Frank says.
First the employer must determine what group of employees will be subject to the alternative workweek schedule, Roberts explains. This “work unit” may consist of one or more nonexempt employees in a specific division, department, job classification, or specific physical location.
After this work unit has been decided, the employer must then present a written proposal to those selected employees. Roberts says the proposal should include a disclosure of how the schedule works and how the payment of overtime would not come into play in that schedule.
Next, the employer should hold a meeting with the employees to inform them of the schedule being proposed and notify them that there will be an upcoming election. This notification is a technical requirement. Employers must hold a meeting 14 days prior to any election in order to give workers enough time to consider whether they want to participate in the election.
Election, Adoption Process
The election is conducted via a secret ballot and all affected employees have a right to vote, Roberts explains. In order for the alternative workweek schedule to be adopted, two-thirds of all affected employees must vote “yes.” Affected workers who decide not to vote are still counted toward the employee total.
If two-thirds of employees vote for the alternative schedule, the employer must then mail the election results to the Department of Industrial Relations (DIR) within 30 days of the election. (See instructions at www.dir.ca.gov.) This certifies the election and becomes a public document as the Labor Commissioner keeps a list of organizations that have a valid alternative workweek schedule in place, Roberts says.
Employers must also keep all documentation related to the creation of the alternative schedule, Roberts explains, including the proposal submitted to employees, minutes from the employee meeting to demonstrate that the meeting took place, records of the election procedure, documentation indicating how the secret ballot was done, the election results, a copy of the filing with the Labor Commissioner’s office, and any other relevant documents.
Other Things to Keep in Mind
The alternative workweek schedule adoption process is detailed, and every step must be taken correctly to have a valid schedule, Frank cautions. If the schedule is invalid — say, if the election results were not submitted — then the employer would not have the legal protection to allow employees to work 10 hours in a day without incurring overtime pay.
Another thing to keep in mind is that just because an alternative workweek schedule is in place, it doesn’t mean that the employer will never have to pay overtime. If an employee works in excess of the proposed schedule, then overtime rules would still apply, Roberts says.
If an employer cannot adopt an alternative workweek schedule, they may still be able to implement a flexible schedule, Roberts adds. For example, a make-up time exception to overtime would allow an employee to work late one day in order to make up time that fell short on a previous workday, so long as the time was requested in advance and the employee doesn’t work over a certain number of hours.
The employer may also break up working hours (such as making shifts earlier or later in the day) or redefine what the workweek is by setting the start and end days differently. So, there are still other options, but it’s important that employers remember to keep track of the hours their nonexempt employees work and maintain accurate records, Roberts stresses.
Importantly, employers should remember that whether employers adopt a flexible schedule, hybrid work arrangement, or bring employees 100% back in the office, meal and rest period rules are still in play, Frank says.