Establishing an Alternative Workweek Schedule: Although by now most employers know that you have to pay non-exempt employees overtime pay for work performed in excess of 8 hours per day or in excess of 40 hours per week, or on the 7th workday of the week, employers continue to be uncertain about alternative workweek schedules. For purposes of California labor law, an “alternative workweek” is a week consisting of shifts of no longer than 10 hours per day within a 40-hour workweek, without payment of an overtime premium.
Although California Labor Code § 511 does set forth a procedure by which an employer may have a four-day, 10 hours per day, workweek without being required to pay overtime compensation for the extra 2 hours per day, the procedure is very involved and something of a minefield for employers. Under the procedure, an employer must first “propose” an alternative workweek schedule. The employer must make a written disclosure to the affected employees, including the effects of the proposed arrangement on the employees’ wages, hours, and benefits. Such a disclosure shall include meeting(s), duly noticed, held at least 14 days prior to voting, for the specific purpose of discussing the effects of the alternative workweek schedule. Failure to comply with this disclosure requirement will make the election null and void. Next, the employees must vote in a secret ballot election, during regular working hours and at the employees’ regular work site, and the proposal must be approved by at least two-thirds of the affected employees. And finally, within 30 days after the election, the employer must report the results of the election to the Division of Labor Statistics and Research. (The results should be sent to the Division of Labor Statistics and Research, Attention: Alternative Workweek Election Results, P. O. Box 420603, San Francisco, CA 94142.)
To complicate matters further, assuming the employer has the election and the alternate workweek proposal passes by at least a two-thirds majority, the employer is obligated to make a “reasonable” effort to find a work schedule not to exceed 8 hours per day in order to accommodate any employee who is unable to work the alternative workweek schedule. If new employees do not want the alternative workweek schedule, the employer may allow new employees to work a regular, 8-hour per day, schedule.
Repeal of an Alternative Workweek Schedule: Once an alternative workweek schedule is in place, it may be repealed by the affected employees. Upon a petition of one-third of the affected employees, a new secret ballot election shall be held and a two-thirds vote of the affected employees shall be required to reverse the alternative workweek schedule. The election to repeal the alternative workweek schedule shall be held not more than 30 days after the petition is submitted to the employer, except that the election shall be held not less than 12 months after the date that the same group of employees voted in an election held to adopt or repeal an alternative workweek schedule. If the alternative workweek schedule is revoked, the employer shall comply within 60 days. Upon proper showing of undue hardship, the Division of Labor Standards Enforcement may grant an extension of time for compliance.
NOTE: Different rules apply in the health care industry.
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