My company adopted an alternative workweek schedule. Does this mean that all employees must work our alternative four-day 10-hour shift schedule, or can employees choose between the alternative schedule and a traditional five eight-hour day schedule?
With limited exceptions, all nonexempt employees in a particular work unit — which, depending on how you defined your work unit, could be the entire company, or a single department within the company — must work the alternative workweek schedule once it is adopted.
The purpose of implementing an alternative workweek is to offer an arrangement that is different from the traditional workweek of five eight-hour days such that, if properly executed, employees can work up to 10 hours a day without triggering the payment of daily overtime.
No Week-by-Week Toggling
Alternative workweek schedules are not intended to give employees the choice to toggle between a traditional workweek and working something alternative such as four 10-hour shifts (4/10) on a week-by-week basis.
This is why a regular eight-hour day cannot even be an option during the alternative workweek voting process since it’s not an alternative; it’s simply a traditional workday. (Labor Code Section 500(c); Division of Labor Standards Enforcement Policies and Interpretations Manual, 126.96.36.199.)
Duty to Accommodate
After an alternative workweek is adopted, whether employees can work five eight-hour days instead of the alternative four 10-hour shift schedule turns on whether they need an accommodation.
Employers have a duty to accommodate employees who are “unable to work the alternative workweek schedule.” The regulations do not define what exactly it means to be “unable to work an alternative workweek schedule.”
It seems evident that employees are considered “unable to work” an alternative schedule if their reasoning is tied to something protected under California law, such as a medical restriction or religious belief. You must explore any available reasonable alternative means to accommodate an employee’s religious belief or observance that conflicts with an alternative workweek schedule.
(For more information on your general obligation to reasonably accommodate an employee’s religious beliefs, see the discussion on Religion in the HR Library on HRCalifornia.)
It is uncertain, however, if something like childcare arrangements or personal choice alone would rise to the level of being “unable to work.”
Election as Factor
Your obligation to accommodate an employee also depends on whether the employee was eligible to vote in your alternative workweek election.
If the employee requesting to work five eight-hour days was eligible to vote in the election and is unable to work the alternative schedule, you must make a reasonable effort to accommodate the employee regardless of whether that employee actually voted in the election.
For employees hired after the election took place, you have the option on whether to accommodate the employee’s request to work a traditional schedule if the request is not for a protected reason such as religious beliefs. This means if you choose not to accommodate an employee who was hired after the election, it will not invalidate your alternative workweek schedule.
Creating and maintaining an alternative workweek schedule is a complicated process that requires careful planning and recordkeeping. See Alternative Workweek Scheduling in the HR Library on HRCalifornia for more information and consult legal counsel for assistance.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.