Some employees want to work longer hours each day in exchange for working fewer days per week. These “alternative workweeks” are permissible, provided the employer follows prescribed methods of adopting and implementing the policies. The most common alternative workweek situation allows employees to work four ten-hour days without receiving overtime. Without the alternative workweek policy, the employee would be entitled to two hours of overtime every day. With a proper alternative workweek agreement, the employee can work the schedule without the employer incurring overtime pay.
Many alternative workweek agreements are invalid because employers fail to follow the appropriate procedures for adopting the policy or they fail to notify the Labor Commissioner about the policy. To be enforceable, an alternative workweek agreement must comply with the following:
(1) The employer must present a written schedule available for the employees (this can be one option or several options from which the employees can choose).
(2) Employees can submit alternatives to the employers options with the employer’s approval;
(3) The written schedule must specify the number of days and amount of hours offered (the actual days do not have to be specified);
(4) There must be at least two (2) consecutive days off during the week;
(5) If the employees elect an alternative workweek, they can switch between the various alternative workweeks offered by the employer;
(6) Each workday must consist of at least four (4) hours but not more than ten (10) hours;
(7) The employer must inform the employees what effect the alternative schedules will have on wages and benefits;
(8) If more than 5% of the workforce does not speak English, the notice of available schedules must also be in the language of that portion of the workforce;
(9) The employees must meet at least 14 days before they vote on the alternative workweek and the employees must be given advance written notice of the meeting;
(10) If all employees cannot attend a single meeting, the employer must hold multiple meetings;
(11) The employer must mail a copy of the disclosure to any employees who could not attend the meeting;
(12) The ballot must be all affected employees;
(13) The “affected employees” can be limited by division, department, job classification, shift, separate location or recognized subdivision of a work unit;
(14) The vote must carry by a 2/3 approval;
(15) The ballots must be confidential (i.e., no names or employee ID)
(16) The election must occur during work hours at the worksite;
(17) The vote cannot be used to retroactively allow an alternative workweek;
(18) The results of the election must be filed with the Labor Commissioner within 30 days of the election (do not send the ballots). The results can be mailed to:
Division of Labor Statistics & Research,
Attn: Alternative Workweek Election Results
P.O. Box 420603
San Francisco, CA 94142
(19) The Labor Commissioner must receive the following:
- Company name, phone, address and contact person;
- Date of the election
- Election results summary
- Description of alternative workweeks from the election
- Statement that the election was by secret ballot, written, and passed by a 2/3 vote
(20) The employer cannot require employees to work the new work hours for at least 30 days after the announcement of the final election results – The regulations do not appear to prohibit allowing an employee to work the alternative workweek if they voluntarily choose to do so.
When deciding whether to adopt or offer an alternative workweek, the employer should consider:
- What schedule(s) did you have in mind for the alternative workweek? (i.e., hours, days, etc.)
- Do you want to offer more than one option? (i.e., four 9-hour days and one 4-hour day, plus four 10-hour days)
- Will employees be able to choose not to work an alternative workweek?
- Do you want to allow employees to submit alternatives to your options?
- Will each employee get at least 2 days off?
- What effect will the alternative workweek have on wages & benefits? (consider how vacation accrues, eligibility for health benefits)
- What percentage of your workforce does not speak English? (if more than 5%, Notice of available schedules must be provided in their language)
- Will all employees be able to attend a single meeting to discuss the proposed schedule? If not, how can all employees have a chance to meet?
- Which employees will be “affected”?
- How are you going to ensure the ballots are confidential? (use drop box and form)
If an employer adopts an alternative workweek wherein the employee is scheduled to work ten hours per day and the employee actually works more than ten hours, the employer must pay one and one-half times the employee’s regular rate of pay for all hours in excess of the alternative workweek schedule. Additionally, if an employee works more days than scheduled under the alternative workweek agreement, the employer must compensate the employee at the overtime rate even if the employee works less than forty hours during the week. Employees are still entitled to double time for hours in excess of twelve hours per day.
You can search the Labor Commissioner’s database for employer names to find out if the employer has registered a valid alternative workweek election.Phillip J. Griego & Associates 95 South Market Street, Suite 520 San Jose, CA 95113 Tel. 408-293-6341 East Bay 925-364-4655
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