January 7, 2019

Most employers know that you must pay non-exempt employees overtime pay for work performed in excess of eight hours per day or in excess of 40 hours per week, or on the 7th workday of the week.  [Cal. Lab. Code § 510; see exceptions set out in Cal. Code Regs., Tit. 8, § 11170, subd. 1.]

However, employers continue to be uncertain about alternative workweek schedules. Under California labor law, an “alternative workweek” is a week consisting of shifts over eight hours per day but no more than 10 hours per day, within a 40-hour workweek, without payment of overtime being required for those hours.  [Cal. Lab. Code § 511(a).]

Establishing an Alternative Workweek:  California Labor Code section 511 sets forth a procedure by which an employer may set a four-day, 10 hours per day workweek without being required to pay overtime for the extra two hours each 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 to one or more “readily identifiable” work units. A work unit can consist of an individual employee.  [Cal. Lab. Code §§ 511(a) and 511(I).]

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, 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 worksite, and the proposal must be approved by at least two-thirds of the affected employees . Finally, within 30 days after the election, the employer must report the results of the election to the Division of Labor Statistics and Research.  [Cal. Code Regs., Tit. 8, §§ 11170, subd. 5, and 11040, subd. 3.]

Assuming the election takes place and the alternative workweek proposal passes by at least a two-thirds majority, the employer must make a “reasonable” effort to find a work schedule not to exceed eight hours per day in order to accommodate any employee 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 an eight-hour day schedule.  [Cal. Code Regs., Tit. 8, §§ 11170, subd. 5, and 11040, subd. 3.]

Overtime Rule for an Alternative Workweek:  If an employee with an alternative workweek works more than the scheduled work hours in any day, the employee is entitled to be paid time-and-a-half for the excess hours worked up to 12 hours, and for any time worked in excess of 40 hours that week.  [Cal. Lab. Code § 511(b).]

If the employee worked more than 12 hours in a day, the employee is entitled to be paid double time for time worked in excess of 12 hours.  [Id.]

An employee is also entitled to receive double time for any time worked beyond eight hours on a day that is not a scheduled workday.  [Id.]

Repealing an Alternative Workweek Schedule:  Once an alternative workweek schedule is in place, it may be repealed by the affected employees.

Upon petition of one-third of the affected employees, a secret ballot election shall be held over whether to repeal the alternative workweek schedule.  A two-thirds vote of the affected employees is required to repeal the alternative workweek schedule.  The election 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 repealed, the employer shall comply within 60 days of the election.  Upon proper showing of undue hardship, the Division of Labor Standards Enforcement may grant an extension of time for compliance.  [Cal. Code Regs., Tit. 8, §§ 11170, subd. 5, and 11040, subd. 3.]

NOTE: Different rules apply in the health care field and the computer software field.

Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net).  Please visit our website at eskridge.hv-dev.com.

This article is based on the law as of the date posted at the top of the article.  This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.