Most employees in California have a right to be paid overtime wages when they work more than 8 hours within the 9 to 5 workweek schedule; however, unpaid overtime claims are the largest category of complaints filed under California’s wage and hours laws. This can be a result of the employer’s lack of understanding of these laws, or it can be a result of wage theft. It’s important to establish an understanding on both sides to avoid penalties as well as missing wages.
Employees who do not have the right to overtime pay at an increased rate include:
- Exempt employees such as administrative professionals, executives, or similar professional functions
- Workers classified as outside salespersons
- Certain unionized employees subject to a collective bargaining agreement
- Workers in specific occupations who are exempt from overtime up until 12 hours per day
Additionally, with the adoption of alternative workweek schedules, employers may be able to require employees to work up to 10 hours per day without paying overtime.
What is an Alternative Work Schedule?
An alternative work schedule (AWS) is a regularly scheduled workweek requiring an employee to work more than eight hours in a 24-hour period. AWS is also an umbrella term used to describe compressed work schedules and flexible work schedules. A compressed workweek schedule is a fixed work schedule in which an employee can be asked to complete a biweekly work requirement in less than 10 working days. A flexible workweek schedule consists of core hours and “flexible bands”. Core hours are scheduled hours which an employee must be present at work, on leave, or using credit hours within the scheduled work day. Flexible time bands refers to periods of time on either side of the core hours where arrival and departure may vary. Examples of flexible work schedules can mean “flex” or make up time, remote or telework, leaves, and sabbaticals.
California employers can create an alternative workweek schedule for a variety of identifiable work units such as shift work, department work, or division. Your employer can propose one single work schedule to become the standard schedule or a menu of work schedule options for employees to choose. With the employer’s consent, employees who adopt a menu of workweek schedules may alternate between standard and alternate schedules on a weekly basis.
What are 9/80 and 4/10 Workweek Schedules?
Generally, alternative workweek schedules allow employees to work longer shifts within a fewer number of work days. This permits employees to legally work over eight hours per day without incurring overtime. An example of alternative workweek schedules are 4/10s where employees can work 10 hours per day in a given workweek. Another example is 9/80s where an employee works 80 hours in nine days over two workweek periods.
Can Employees Still Receive Overtime?
Alternative workweek schedules should not be used to avoid paying employees overtime. Whether your employer has opted for a 4/10 or 9/80 work schedule, an AWS may not require an employee to work more than 10 hours per day or more than 40 hours of work per week. If an employee were to exceed 10 hours per day, they are then entitled to overtime pay at a rate no less than one-and-one-half times their regular rate of pay. This overtime pay applies to all time worked between 10 and 12 hours per day. With some exceptions, if an employee exceeds 12 hours per day, they are entitled to double their regular rate of pay.
What are the Benefits and Disadvantages of Alternative Workweek Schedules?
While no two employees are the same, many prefer flexibility over the standard 9 to 5 arrangement. According to a survey by CareerBuilder, 59% of workers believe the 9 to 5 workweek schedule is a thing of the past. The study also reports that 45% of workers within a traditional schedule complete work after hours, and 49% check to answer emails after the work day is through. With a growing population of new and emerging young families opting for a diverse workweek schedule, here are a few benefits that can result from alternative workweek schedules:
- Decreased commuting time and costs
- Decreased child care expenses
- Flexibility in shift assignment
- Reduced absenteeism
- Increased productivity
- Increased work quality
For employers, the benefits of alternative workweek schedules can result in an increase of profitability and a reduction in turnover rate. On the other hand, employees may find alternative workweek schedules to impede their ability to perform their jobs. In the corporate arena, when it comes to communication for example, it’s usually important that all necessary parties are on the same “time clock”.
What Makes an Alternative Workweek Schedule Lawful?
California Labor Code Section 511 and some Industrial Welfare Commission (IWC) Wage Orders allow employers to establish alternative workweek schedules. However, there are several steps your employer must take to legally implement an alternative workweek schedule in the state of California.
1. Determine the Work Unit
First, your employer must determine the work unit that will be affected by the schedule change. The scheduled change must include a minimum of four hours of work per day to suffice as an alternative workweek schedule.
2. Present a Proposal
Secondly, your employer must propose a written schedule to the affected work unit. The schedule must include how many days per week the employee will be working as well as how many days off. Within IWC requirements under Orders 1-3, 6-8, and 11-13, the schedule must include two consecutive days off. Your employer must also include the legally allotted 30 minutes to an hour for lunchtime breaks. Once this schedule is approved, it can not deviate from the original proposal.
If at least 5% of employees are non-English speaking, your employer must present this proposal in both English and the employee’s native language. A meeting must be held 14 days prior to voting in order to properly inform the staff of the changes and any effects on wages, hours, and benefits. Employees must be given an advanced notice, and those who can not attend must be mailed a physical copy directly.
3. Secret Ballot Election
Before implementing the workweek schedule, a two-thirds vote must be reached by those affected within the work unit. The election results must be filed with the state of California’s Division of Labor Statistics and Research within 30 days after results are final to be effective. This election must be held at the worksite of the affected work unit during regular work hours and all associated costs must be paid by the employer. The California Department of Industrial Relations provides California employees with a database of companies who have filed alternative workweek election results with the Labor Commissioner’s Office.
4. Grace Period
Your employer must then wait 30 days to implement the schedule as employees may not be required to adhere to changes prior to this time frame. Overall, the process should take around two months from the proposal date before employees are expected to alter their day to day schedules. If the above steps are not taken properly, the employer can be subjected to penalties or violations.
What is the Repeal Process Once an Alternative Workweek is Approved?
While a two-thirds vote is required to approve an alternative workweek schedule, employees affected by the change can repeal it. This requires a new secret ballot election and a two-thirds vote required to reverse the order. The election to repeal must be held within 30 days after the elected proposal is submitted; however, the same employees who voted to repeal or adopt the election may not vote again within 12 months from the last election.
Hire an Employment Attorney in California | Kyle Todd P.C.
Unpaid overtime is the most common class action lawsuit within the sometimes ambiguous legal realm of alternative workweek schedules in California. Employers are subject to penalties of $100 for the first pay period and $200 for subsequent pay periods. If your employer is violating the law governing alternative workweek schedules in California, you may be entitled to back pay, unpaid overtime, and other damages. Know your work rights as an employee in the state of California. You can trust Kyle Todd P.C. to fight for your employment rights and get you what you’re owed. Schedule a consultation with Kyle Todd P.C. today!