The California Chamber of Commerce and a coalition including numerous local chambers of commerce are supporting legislation that allows for an employee-selected flexible work schedule.
AB 1761 (Voepel; R-Santee) relieves employers of the administrative cost and burden of adopting an alternative workweek schedule per division, which accommodates employees, helps retain employees, and allows the employer to invest these savings into growing its workforce.
Traps in California Process
California is one of the only states that requires employers to pay daily overtime after eight hours of work in addition to weekly overtime after 40 hours of work.
Even other 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 through a multi-step process to have employees elect an alternative workweek schedule that, once adopted, must be “regularly” scheduled and must apply to the entire work unit.
This process is filled with potential traps that could lead to 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.
Little Used Option
Currently, there are 42,494 reported alternative workweek schedules with the Division of Labor Standards Enforcement. According to the Employment Development Department, California has about 1.2 million employers. Therefore, about less than 4% of California employers utilize the alternative workweek schedule option.
Further, more realistically, given that the 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.
Employees Want Flexibility
Employees want flexibility in their work schedules. In a recent CalChamber poll, 88% of voters agreed (49% of them strongly) that the state’s overtime laws should be changed to make it easier for employees to work alterative schedules, such as four 10-hour days.
A survey by the Society for Human Resource Management revealed that 91% of human resources professionals agree that flexible work arrangements positively influence employee engagement, job satisfaction, and retention.
According to Corporate Voices for Working Families and WFD Consulting, an in-depth study of five organizations that allow their nonexempt employees to have flexibility in their schedules found that employee commitment was 55% higher and burnout and stress decreased by 57%.
Pandemic Impact
Women and low-income workers have suffered the most from the inability to have flexible schedules, feeling pressured to abandon career goals to care for children and fulfill household obligations.
That pressure has been exacerbated by the COVID-19 pandemic. An article by NPR estimated that close to 900,000 women left the workforce in 2020 to keep up with the demands of child care and household obligations. That rate is four times higher than men.
With near-record unemployment, California should be doing everything possible to maximize opportunities for employers to allow employees to set hours that work for an employee’s personal and family obligations. This way, workers can continue to be employed and support themselves and their families.
Individual Flexibility
AB 1761 would provide employees more flexibility because the employee could request an alternative workweek schedule on an individualized basis. It would also relieve employers of the administrative cost and burden of adopting an alternative workweek schedule per division.
Pursuant to AB 1761, at the request of the employee, an employer would be 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, before overtime is owed.
Employers should be able to provide their employees more flexibility and negotiate through a written agreement, revocable by either party, the daily/weekly schedule that satisfies the needs of both the employee(s) and the employer.
Promoting flexible policies that allow employees to continue to be employed and earning income while working from home is needed now more than ever.
AB 1761 has been assigned to the Assembly Labor and Employment Committee. No hearing date has been set.
