Employers across California are slowly starting to embrace the use of alternative workweek schedules. The alternative workweek schedule, as provided for in various California Wage Orders and California Labor Code Section 511, allows for an alternative schedule of no longer than 10 hours a day within a 40-hour work week without paying overtime. The implications of the alternative work week schedule are powerful because it effectively allows employers to avoid paying time and a half overtime.
The intent and purpose behind the alternative workweek statute is to provide employees with desired flexibility in scheduling. Many times, an alternative workweek schedule and this flexibility are a benefit to employees. For example, an employee may prefer working four ten-hour days a week to cut down on commute time or prefer the flexibility of a three-day weekend. As a statute controlling the conditions of employment, the alternative workweek statute is to be construed in favor of protecting employees, as opposed to employers. Nevertheless, California employers have attempted to misuse the alternative workweek to cut labor costs and avoid paying overtime.
To further the goal of protecting the employees, there are strict procedural requirements involved in establishing an alternative work week. First, there must be full written disclosure to all the affected employees, including a description of the effects of the proposed alternative workweek arrangement on the employees’ wages, hours and benefits. If the work force includes over 5% non-English speakers, the written disclosure materials must also be provided in their native language. After the written disclosure, the employees must be allowed an opportunity to vote on the alternative work week schedule in a secret ballot election. At least two-thirds of the affected employees must choose the alternative work week for it to be adopted.
If an alternative workweek is properly adopted through an accurate disclosure and secret ballot election, the employer is still responsible to make sure that it is applied in manner that complies with the Labor Code. For example, if the employer requires the employees to work less than the regularly scheduled alternative work week, the employer is required to pay time and a half for any hours worked after eight hours in a day. If an employee is required to work more than ten hours in a day, the employer is obligated to pay an overtime rate of time and a half for any hours exceeding ten hours in a day. Importantly, the employer is also required to make reasonable efforts to provide a work schedule not exceeding eight hours in a day for any employee who voted in the alternative workweek election, but is unable to work the alternative schedule.
To protect against potential misuse, the alternative work week schedule system includes a series of complicated and detailed procedural requirements both in its implementation and application. These requirements and a general lack of understanding have kept some employers from using alternative workweek schedules. Now with more employers starting to embrace alternative workweek schedules, the risk for misuse is increasing. it is important that employees understand their rights if their employer proposes an alternative workweek schedule.
-Author Justin C. White is an associate attorney with the Louderback Law Group